THIRD DIVISION

November 20, 2017

G.R. No. 195043

ARNEL CALAHI, ENRIQUE CALAHI, AND NICASIO

RIVERA, Petitioners
vs.
PEOPLE OF THE PHILIPPINES, Respondent

DECISION

MARTIRES, J.:

This Petition for Review on Certiorari under Rule 45 seeks to

reverse and set aside the 22 July 2010 Decision1 of the Court of
Appeals (CA) in CA-G.R. CR No. 28889 which affirmed the 17
May 2004 Decision2 of the Regional Trial Court, Branch 86,
Cabanatuan City (RTC), in Criminal Case No. 7907 finding
petitioners guilty beyond reasonable doubt of illegal possession
and use of dangerous drugs under Section 16, Article III of
Republic Act No. 6425 (R.A. No.6425), or the Dangerous Drugs
Act of 1972.

THE FACTS

An Information filed 21 November 1997 charged petitioners

Enrique Calahi (Enrique), Amel Calahi (Arnel), and Nicasio
Rivera (Nicasio), including accused Nicolas
Macapagal (Nicolas), with the following:

That on or about the 20th day of November 1997, in the City of

Cabanatuan, Republic of the Philippines and within the
jurisdiction of this Honorable Court, the above-named accused
were all caught in the act of sniffing shabu inside the XL T
passenger type jeepney and accused Nicasio Rivera was
further caught in possession of the remaining
Methamphetamine Hydrochloride or shabu, a regulated drug,
approximately weighing zero point thirty six (0.36) gram, without
any authority of law.3

When arraigned on 24 September 1998, the petitioners pleaded

not guilty.

On the other hand, accused Nicolas pleaded guilty to the crime

charged when arraigned on 13 May 1999. Satisfied that Nicolas
entered a plea of guilty voluntarily and understood the
consequences of his act, the court applied the provisions of the
Indeterminate Sentence Law and the mitigating circumstance of
the voluntary plea of guilty and sentenced him to suffer the
penalty of prision correccional in its minimum period.

Trial ensued for Enrique, Arnel, and Nicasio.

Version of the Prosecution

On the evening of 20 November 1997, members of the PNP

Criminal Investigation and Detection Group (CIDG),Cabanatuan
City, consisting of SPO3 Danilo Padilla (SPO3 Padilla) and
confidential agents Santiago Maligson (Agent Maligson) and
Fernando Lopez (Agent Lopez), served a search warrant on
Elsie Valenzuela (Elsie) at San Josef Norte, Cabanatuan City.
While serving the search warrant, the CIDG members noticed
an XLT jeep parked near Elsie's house. Suspicious, they
approached said jeep and saw four (4) persons holding a pot
session inside. They noticed the following items inside the
vehicle: an aluminum foil, an improvised tooter, a lighter, and
remnants of shabu. SPO3 Padilla and his team immediately
arrested the four who were later identified as Enrique, Arnel,
Nicasio, and Nicolas and confiscated the white substance found
with them. Then they were brought to the police station in
Cabanatuan City.4

Thereafter, SPO3 Padilla requested a laboratory examination

on the confiscated substance by the PNP Crime Laboratory,
Cabanatuan City.

Kathlyn L. Vigilia (Vigilia), a forensic analyst at the Nueva Ecija

Provincial Crime Laboratory Field Office, conducted an initial
examination on the confiscated substance. In her Initial
Laboratory Examination Report,5 dated 21 November 1997,
Vigilia indicated that two specimens were submitted for
examination: a white crystalline substance weighing 0.36 gram,
denominated as Specimen "A," and one (1) small piece of
aluminum foil, designated as Specimen "B." She found that
Specimen "A" was positive for methamphetamine hydrochloride
(i.e., shabu) while Specimen "B" was negative for said
substance.

Version of the Defense

At around 9:30 p.m. on 20 November 1997, Enrique, Arnel,

Nicasio, and Nicolas drove to San Josef Norte, Cabanatuan
City, to inquire from Elsie if the baptism of a certain child would
proceed the following day. They parked their jeep near Elsie's
house. Suddenly, policemen arrived and searched the XLT
for shabu but did not find any. The police officers then told them
to alight from the jeep and brought them to Elsie's house. The
policemen then conducted a search inside Elsie's house,
pursuant to a search warrant issued against her, but were not
able to find any shabu.

After the search, one of the CIDG members reported the

incident to their team leader, Captain Noel Caligagan (Captain
Caligagan), through radio, who told them to bring the suspects,
including Elsie, to the CIDG office. They were detained therein,
but were subsequently released from police custody after
posting their bail bond.6

The RTC Ruling

The RTC convicted Enrique, Arnel, and Nicasio for violation of

Section 16, Article III of R.A. No. 6425.

The dispositive portion reads:

WHEREFORE, premises considered, judgment is hereby

rendered convicting the accused Enrique Calahi, Arnel Calahi,
and Nicasio Rivera of the crime of violation of Section 16,
Article III of Republic Act No. 6425, as amended, and hereby
sentences them to suffer the penalty of prision mayor which has
a range of 6 years and 1 day to 12 years imprisonment. As the
quantity of "shabu" charged in the Information is only 0.36 gram
and applying the Indeterminate Sentence Law in favor of the
accused, the penalty imposable upon each accused is prision
correccional in its minimum period which has a range of 6
months and 1 day to 2 years and 4 months imprisonment. Said
accused are likewise ordered to pay a fine of ₱3,000.00 each.

The "shabu" weighing 0.36 gram which is the subject matter of

this case is hereby ordered forfeited in favor of the government,
the same to be immediately turned over to the Dangerous
Drugs Board of the National Bureau of Investigation pursuant to
the provision of Section 16, Republic Act No. 6425, as
amended, for the reason that it is no longer needed as
evidence in judicial proceeding.7

In rendering the judgment of conviction, the trial court gave

more credence to the evidence of the prosecution. It held that
the prosecution was able to establish beyond reasonable doubt
all the elements of the crime charged, noting that the
testimonies of the prosecution witnesses were natural,
straightforward, probable, and credible. On the other hand,
petitioners only offered mere denials.8
The petitioners filed a motion for reconsideration of the said
decision, but it was denied by the RTC in an Order9dated 6 July
2004. Aggrieved, they appealed before the CA.

The CA Ruling

The CA denied the appeal and affirmed the decision of the R

TC in toto. It explained that the court a quo's evaluation on the
witnesses' credibility is generally accorded great weight and
respect unless it is shown that it overlooked or misapplied
certain facts relative to the weight and substance bearing on
the elements of the offense. It held that the RTC correctly found
that the prosecution was able to prove beyond reasonable
doubt that the petitioners violated Section 16, Article III of R.A.
No. 6425.10

Hence, this petition.

ISSUE

The following are raised:

1. WHETHER OR NOT THE ABSENCE OF AN INVENTORY

AND PHOTOGRAPH OF THE SPECIMEN PURPORTEDLY
SEIZED AFFECTED THE CONTINUITY OF THE CUSTODY
OF THE SAME THAT WILL TARNISH THE INTEGRITY OF
THE EVIDENCE;

2. IN ANY EVENT, WHETHER OR NOT THE PENALTY

IMPOSED THEREON IS PROPER.

Essentially, the question posed for this Court's determination is

whether or not the petitioners' guilt has been proven beyond
reasonable doubt.

Petitioner posits that the integrity and identity of the seized

items were tarnished because the arresting officers failed to
inventory and photograph the seized items in petitioners'
presence, contrary to the mandate of Dangerous Drugs Board
Regulation No. 3, series of 1979, as amended by Board
Regulation No. 2, series of 1990; that the prosecution also
failed to show that the arresting officers marked the items
immediately after the alleged seizure; and that the identity of
the drug is consequently suspect.

On the other hand, the Office of the Solicitor

General (OSG) argues that a violation of the regulation relied
upon by petitioners is a matter strictly between the Dangerous
Drugs Board and the arresting officers, having no bearing on
the prosecution of the criminal case; that noncompliance
thereof will not necessarily render the seized items
inadmissible; and that absent proof to the contrary, the
arresting officers are presumed to have regularly performed
their duty.

THE COURT'S RULING

The Court finds merit in the petition.

As object evidence, the nature of

narcotic substances requires the
establishment of a chain of custody.

At the outset, the use of dangerous drugs necessarily entails

possession thereof. A conviction for illegal possession of
dangerous drugs requires an indubitable showing of the
following elements: (1) the accused was in possession of
dangerous drugs; (2) such possession was not authorized by
law; and (3) the accused was freely and consciously aware of
being in possession of dangerous drugs.11

The dangerous drug seized from the accused constitutes

the corpus delicti of the offense. It is thus paramount for the
prosecution to establish that the identity and integrity of the
seized drug were duly preserved in order to sustain a
conviction.12 Otherwise, there would be no basis to convict for
illegal possession of dangerous drugs because "the mere fact
of unauthorized possession will not suffice to create in a
reasonable mind the moral certainty required to sustain a
finding of guilt. More than just the fact of possession, the fact
that the substance illegally possessed in the first place is the
same substance offered in court as exhibit must also be
established with the same unwavering exactitude as that
requisite to make a finding of guilt."13

In People v. Obmiranis,14 this Court held that "a unique

characteristic of narcotic substances such as shabu is that they
are not distinctive and are not readily identifiable as in fact they
are subject to scientific analysis to determine their composition
and nature. And because they cannot be readily and properly
distinguished visually from other substances of the same
physical and/or chemical nature, they are susceptible to
alteration, tampering, contamination, substitution and exchange
- whether the alteration, tampering, contamination, substitution,
and exchange be inadvertent or otherwise not."

Considering the above circumstances, that (1) the existence

of shabu seized from the accused is essential to a judgment of
conviction, and (2) by its nature, it is an object evidence that is
not readily identifiable, it is therefore imperative to apply a
stricter standard in authenticating a narcotic substance by
establishing a chain of custody with sufficient completeness in
order to ensure that the original item has not been exchanged,
altered, or tampered with.15

The chain of custody rule requires proof of every link in the

chain, from the moment the item was seized to the time it is
presented in court and offered into evidence, such that
witnesses constituting the chain are able to testify on how it
was given and received, including the precautions taken to
ensure that the seized item was not altered or tampered with.16

The prosecution failed to establish that

the shabu was marked upon seizure,
creating a gap in the initial stage of the
chain of custody.

After a careful examination of all the evidence on record, this

Court finds that the prosecution failed to establish the identity of
the shabu by the requisite proof.

Notably, the records are bereft of any showing that the seized
items were marked upon seizure.

SPO3 Padilla, who requested the examination of the seized

items by the crime laboratory, did not indicate that the
apprehending team marked the items immediately after
confiscating them, viz:

Fiscal

(to SPO3 Padilla)

Q. How did you see that those four persons were actually
having pot session inside when it was nighttime?

A. The XLT passenger type jeep was parked not far from the
house where we effected the search warrant, sir.

Q. Were there lights or were there no lights?

A. There is, sir.

Q. What did you do thereafter?

A. We arrested them and we brought them to our office, sir.

xxxx
Q. Now, after you and your companions placed those persons
under arrest and eventually took them to your station in the
Provincial Compound, what else happened?

A. I made a request with the crime laboratory to make an

examination of those materials or substances which we were
able to take from them, sir.17

xxxx

Q. What happened after you found the shabu weighing

approximately one (1) gram and the residue in the aluminum
foil positive for shabu, a regulated drug, what did you do?

A. We filed a case against them in the Fiscal's Office for

inquest, sir.18 (emphasis and underlining supplied)

The foregoing only establishes that after seizure of the items

and arrest of the petitioners, the apprehending team took the
latter to the police station, then requested a laboratory
examination of the confiscated items, and eventually requested
inquest proceedings in connection with the petitioners' arrest. It
was not in any way established that the items were marked
after seizure.

These events were confirmed by the testimony of Agent Lopez,

who accompanied SPO3 Padilla in apprehending the
petitioners, viz:

Fiscal

(to Agent Lopez)

Q. You mentioned that you observed the group holding a

toother (sic) and aluminum foil, wh[a]t make (sic) you conclude
that this group was sniffing shabu?

A. Because that happening is already familiar, sir.

Q. And what made you become familiar with that kind of

articles, the toother (sic) and the aluminum foil?

A. Because I was once a Narcom agent and we encountered

several cases similar to that, sir.

Q. What else transpired?

A. We arrested them, sir.

Q. Who were arrested?

A. Enrique Calahi and Amel Calahi, sir. Nicasio Rivera and
Nicolas Macapagal, sir.

Q. After arrest was effected, what else did you do, if you did
anything?

A. We brought them to our office, sir.

Q. And what happened at your office?

A. I do not know anymore because after we reached our office I

already left, sir.19 (emphasis and underlining supplied)

Even the testimony of Vigilia, the forensic analyst who

conducted the laboratory examination on the items, is devoid of
any showing that the items she received pursuant to SPO3
Padilla's request for examination were duly marked upon
receipt, viz:

Fiscal

(to Vigilia)

Q. Did you bring to Court the specimens that you had

examined?

A. Yes, sir.

Q. Will you show it to the Honorable Court.

A. Here, sir. (Witness handed over to the Fiscal a small paper

envelope with markings KLV-DlSl-97 and submarkings "A" and
"B," with an illegible signature)

Q. What is the significance of these markings on the envelope,

Miss Witness?

A. These markings are for identification and safe-keeping

purposes, sir.

Q. There appears a signature on this envelope, do you know

whose signature is this?

A. This is mine, sir.

Q. Will you kindly open the envelope.

A. Yes, sir. (Witness opening the envelope)

Fiscal:
For the record, the envelope, when opened, contained a
transparent plastic pack and inside the transparent plastic
pack are an aluminum foil and a smaller transparent plastic
pack with a staple wire on it with markings NR, AC, EC, NM
and the aluminum foil contained markings NR,AC, EC,
NM.20 (emphasis and underlining supplied)

While it appears that the specimen presented in court, namely,

the aluminum foil and the white substance identified
as shabu, were marked with the initials "NR, AC, EC, NM,"
(presumably the initials of the accused) it was not shown who
marked the same and when it was done, and whether it was
done by the apprehending team upon seizure and before
submission to the crime laboratory for examination or not.

It is also worth noting that while SPO3 Padilla readily admits

that he was the one who requested the laboratory examination
on the seized items, none of the prosecution witnesses
recounted which apprehending officer seized the items and had
possession and control thereof after said confiscation and while
in transit to the police station.

The above-mentioned circumstances created a gap in the initial

stage of the chain of custody from the time of seizure until the
request for examination, wherein the seized item could have
been altered, substituted, or contaminated, inadvertently or
otherwise.

The gap in the chain of custody

caused by the lack of marking upon
confiscation undermined the identity
and integrity of the confiscated drug,
raising reasonable doubt that the
specimen presented in court is the
same one confiscated from the
petitioners.

In Lopez v. People,21 where the petitioner therein was charged

with illegal possession of dangerous drugs under Section 16 of
R.A. No. 6425, the Court found that there was an irregularity in
the first link of the chain of custody because, while the arresting
officer testified that the confiscated items were marked at the
police station, it was uncertain who placed the markings and no
other witness testified on the supposed markings. The Court
held therein that "failure of the authorities to immediately mark
the seized drugs raises reasonable doubt on the authenticity of
the corpus delicti and suffices to rebut the presumption of
regularity in the performance of official duties. Failure to mark
the drugs immediately after they were seized from the accused
casts doubt on the prosecution evidence, warranting acquittal
on reasonable doubt."

In the same case, the Court also explained that "marking after
seizure is the starting point in the custodial link, thus, it is vital
that the seized contraband is immediately marked because
succeeding handlers of the specimens will use the markings as
reference. The marking of the evidence serves to separate the
marked evidence from the corpus of all other similar or related
evidence from the time they are seized from the accused until
they are disposed at the end of criminal proceedings, obviating
switching, 'planting,' or contamination of evidence."

In Zarraga v. People,22 which charged the accused of

conspiring in the illegal sale of dangerous drugs under R.A. No.
6425, the Court found that material inconsistencies in the
testimonies of the policemen conducting the buy-bust operation
with regard to when and where the markings on the shabu were
made, created reasonable doubt as to the identity of the corpus
delicti. The Court ruled that "the corpus delicti must be
presented as evidence in court. The corpus delicti should be
identified with unwavering exactitude."

In People v. Simbahon,23 involving illegal possession of a

prohibited drug under R.A. No. 6425, the Court found that the
prosecution failed to identify that the marijuana presented in
court was the very same marijuana allegedly seized from the
accused because while one of the apprehending officers
testified that the confiscated brick of marijuana was marked by
the investigator, such marking could not be found when the
brick was presented in court.

The records reveal that the instant case does not merely
involve irregularities in the marking of the
confiscated shabu, but also the complete absence of evidence
indicating that it was even marked in the first instance. The lack
of due marking upon confiscation renders the identity of
the shabu, the corpus delicti presented in court, highly
questionable. It cannot satisfy the standard of proof required in
criminal cases and thus warrants the acquittal of petitioners.

While the Court, on certain

occasions, relaxed the stringent
application of rules and regulations
relative to the handling of dangerous
drugs after seizure and confiscation,
it is vital that the identity and
integrity of the confiscated drug is
shown to have been duly preserved.

The petitioners contend that the apprehending officers' failure to

comply with the pertinent provision of Dangerous Drugs Board
Regulation No. 3, series of 1979, as amended by Board
Regulation No. 2, series of 1990, which prescribes the
procedure in the seizure of dangerous drugs under R.A. No.
6425, was fatal to the prosecution's case. Said regulation
provides:

Section 1. All prohibited and regulated drugs, instruments,

apparatuses and articles specially designed for the use thereof
when unlawfully used or found in the possession of any person
not authorized to have control and disposition of the same, or
when found secreted or abandoned, shall be seized or
confiscated by any national, provincial or local law enforcement
agency. Any apprehending team having initial custody and
control of said drugs and/or paraphernalia, should immediately
after seizure or confiscation, have the same physically
inventoried and photographed in the presence of the accused, if
there be any, and/or his representative, who shall be required
to sign the copies of the inventory and be given a copy thereof.
Thereafter, the seized drugs and paraphernalia shall be
immediately brought to a properly equipped government
laboratory for a qualitative and quantitative examination.
(emphasis and underlining supplied)

In its Comment,24 the Office of the Solicitor

General (OSG) cites People v. Salak25 and People v. Gratil26 to
support its argument that a violation of the said rule is not fatal
to the prosecution; that it does not render petitioners' arrest
illegal nor the seized items inadmissible in evidence, because
said violation is a matter strictly between the Dangerous Drugs
Board and the arresting officers and is totally irrelevant to the
prosecution of the criminal case; and that the presumption of
regularity in the performance of official duty stands.

A reading of the cases cited by the OSG shows that despite the
noncompliance of the regulation by the arresting officers, the
integrity and evidentiary value of the confiscated drugs were
preserved and were never put into serious doubt. In fact, the
drugs seized in those cases were found to have been duly
marked upon confiscation, which justified the Court's reliance
on the presumption of regularity.

As previously discussed, the same scenario does not obtain in

the case at bar, because the lack of marking tarnished the
identity and integrity of the confiscated shabu and rebutted the
presumption of regularity.

Further raising doubt on the identity of

the confiscated shabu are the
contrasting laboratory findings between
the remaining shabu and the shabu
residue contained in the aluminum foil
allegedly confiscated from the
petitioners and submitted to the crime
laboratory.

SPO3 Padilla and Agent Lopez testified that when they

approached the petitioners' vehicle, they saw that a pot session
was going on, viz:

Fiscal

(to SP03 Padilla)

Q. Now, you said that you chanced upon a passenger jeepney

parked not far from where you implemented the search warrant,
what type of vehicle was that?

A. It is an XLT passenger jeep, sir.

Q. And what happened after that?

A. After we saw the parked vehicle, we saw four (4) persons in

a pot session in that vehicle, sir.

Q. And where were these four (4) persons when you saw them
having pot session?

A. Inside the passenger XLT, sir.

Q. And what made you conclude that those four persons were
really having pot session?

A. We saw the following, sir: aluminum foil, improvised toother

(sic), lighter, and the remaining shabuweighing approximately
one (1) gram.27

xxxx

Fiscal

(to Agent Lopez)

Q. And what happened after approaching the jeep?

A. We saw that they were sniffing something, sir.

Fiscal:

May we request, Your Honor, that the exact words be

incorporated in the records.

Court:

Alright, enter the answer of the witness on record.

Witness:

"Nakita naming na may hinihithit sila," sir.28 (emphasis and

underlining supplied)

In fact, one of the items transmitted by SPO3 Padilla to the

crime laboratory for examination was an aluminum foil
with shabu residue, viz:

Fiscal

(to SPO3 Padilla)

Q. Now, after you and your companions placed those persons

under arrest and eventually took them to your station in the
Provincial Compound, what else happened?

A. I made a request with the crime laboratory to make an

examination of those materials or substances which we were
able to take from them, sir.

Q. Was the request in writing?

A. Yes, sir.

Q. Do you have it with you now?

A. Yes, sir.

Q. Will you show it to the Honorable Court?

A. Here, sir. (Witness presenting a piece of paper dated

November 21, 1997)

FISCAL:

We request, Your Honor, that this request shown by the witness

be marked in evidence as Exhibit "A."
COURT:

Mark it, Exhibit "A."

FISCAL:

And the articles enumerated therein be bracketed and marked

as Exhibit "A-1."

COURT:

Mark it.

Q. Now, your request mentioned of the following items:

aluminum foil with remaining residue, improvised toother [sic],
lighter, and the remaining shabu weighing approximately one
(1) gram. Where are these articles now?

A. The substance is in the crime laboratory for examination,

sir.29 (emphasis and underlining supplied)

The foregoing tends to establish that the petitioners used

certain paraphernalia, including aluminum foil, in holding their
pot session. Aside from the remaining shabu, these
paraphernalia were also confiscated from the petitioners and
submitted for laboratory examination.

However, the findings in the Initial Laboratory Examination

Report30 issued by Vigilia indicate that Specimen "B," the
aluminum foil, is negative for shabu. She confirmed during trial
that she reached the same conclusion after conducting a more
thorough examination afterwards, which she wrote in a
chemistry report, viz:

Fiscal

(to Vigilia)

Q. What did you do next after conducting your initial laboratory

examination?

A. First I took a representative sample from the specimens and

treated them with a Marquis reagent wherein an orange to
brown color appeared on Specimen A indicating that it was
positive of methamphetamine hydrochloride or shabu, a
regulated drug, but Specimen B, contained in an aluminum foil,
was negative of the said regulated drug. Next, another sample
from Specimen A was treated with Simons reagent wherein a
deep blue color appeared which indicated that it was positive
for methamphetamine hydrochloride, or shabu, a regulated
drug. Then, finally, I did the confirmatory test. Under the
confirmatory test, I took another sample from the said specimen
including a standard methamphetamine hydrochloride and
spotted them in a thin layer chromatographic (TLC) plate and
soaked that plate in a solvent system. After that I sprayed it with
a locator and two identical spots appeared which indicated that
Specimen A was positive of methamphetamine hydrochloride,
or shabu, a regulated drug. Then I put my findings into a written
report, sir.31 (emphasis and underlining supplied)

The Court finds perturbing the differing laboratory findings as to

the remaining shabu (Specimen "A") and the residue contained
in the aluminum foil (Specimen "B"), both supposedly
confiscated from petitioners. It stands to reason that if
petitioners were indeed caught while their pot session was
ongoing, and the aluminum foil was among the confiscated
paraphernalia used in such activity, the residue found in the foil
would match that of the remaining unused shabu seized from
them. This discrepancy further renders questionable the identity
and integrity of the corpus delicti and, therefore, raises serious
doubt as to the petitioners' guilt.

In view of the foregoing, the Court is

constrained to acquit.

Owing to the basic constitutional principle that an accused in a

criminal prosecution is presumed innocent until proven
otherwise, it is well-established that the prosecution must stand
or fall on its own merits and cannot draw strength from the
weakness of the defense.32 When the prosecution fails to
overcome the presumption of evidence by failing to present the
required amount of evidence, the defense need not even
present evidence on its behalf.33

Accordingly, while petitioners' defense of denial is admittedly

weak, this Court finds it unnecessary to discuss it, in view of the
prosecution's failure to indubitably show the identity of
the shabu allegedly confiscated from them. It is also
unnecessary to discuss the other issues raised in the petition,
as the Court finds that the acquittal of petitioners based on
reasonable doubt is in order.

WHEREFORE, the petition is GRANTED. The 22 July 2010

Decision of the Court of Appeals in CA-G.R. CR. No. 28889
is REVERSED and SET ASIDE. Petitioners Amel Calahi,
Enrique Calahi, and Nicasio Rivera are hereby ACQUITTED of
the crime charged against them.
SO ORDERED.

SAMUEL R. MARTIRES
Associate Justice

WE CONCUR:

PRESBITERO J. VELASCO, JR.

Associate Justice
Chairperson

MARVIC M.V.F.
LUCAS P. BERSAMIN
LEONEN
Associate Justice
Associate Justice

ALEXANDER G. GESMUNDO
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been

reached in consultation before the case was assigned to the
writer of the opinion of the Court’s Division.

PRESBITERO J. VELASCO, JR.

Associate Justice
Chairperson, Third Division

CERTIFICATION

Pursuant to the Section 13, Article VIII of the Constitution and

the Division Chairperson’s Attestation, I certify that the
conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the
opinion of the Court’s Division.

MARIA LOURDES P.A. SERENO

Chief Justice

Footnotes
1
Rollo, pp. 44-54.
2
Id. at 92-96; Penned by Presiding Judge Raymundo Z.
Annang.
3
Id. at 92.
4
TSN, 6 January 2000, pp. 4-7.
5
Rollo, p. 122.
6
Id. at 48.
7
Id. at 69.
8
Id. at 68.
9
Id. at 74-75.
10
Id. at 53-54.
11
People v. Ismael, G.R. No. 208093, 20 February 2017.
12
People v. Casacop, G.R. No. 210454, 13 January
2016, 780 SCRA 645, 653.
13
Zafra v. People, 686 Phil. 1095, 1106 (2012).
14
594 Phil. 561, 572 (2008).
15
Id.
16
Fajardo v. People, 691 Phil. 752-759 (2012),
citing Mallillin v. People, 576 Phil. 576, 587 (2008).
17
TSN, 6 January 2000, p. 7.
18
Id. at 9.
19
TSN, 26 July 2001, p. 8.
20
TSN, 15 June 2000, p. 6.
21
725 Phil. 499, 510 (2014).
22
519 Phil. 614, 620-623 (2006).
23
449 Phil. 74, 82-83 (2003).
24
Rollo, pp. 224-241.
25
660 Phil. 568, 580 (2011).
26
667 Phil. 681, 696-697 (2011).
27
TSN, 6 January 2000, p. 6.
 28
TSN, 26 July 2001, p. 5.
29
TSN, 6 January 2000, pp. 7-8.
30
Rollo, p. 122.
31
TSN, 15 June 2000, pp. 4-5.
32
People v. Dacuma, 753 Phil. 276, 287 (2015).
33
Id.

SECOND DIVISION

PEOPLE OF THE G.R. No. 191366

PHILIPPINES,
Plaintiff-Appellee, Present:
CARPIO, J.,Chairperson,
NACHURA,
PERALTA,
ABAD, and
- versus -
MENDOZA, JJ.

ARNOLD MARTINEZ Y
ANGELES, EDGAR DIZON
Y FERRER,
REZIN MARTINEZ
Y CAROLINO, and RAFAEL Promulgated:
GONZALES Y CUNANAN, December 13, 2010
Accused-Appellants.

X ----------------------------------------------------------------------------------
-----X

DECISION
MENDOZA, J.:

This is an appeal from the August 7, 2009 Decision[1] of the Court

of Appeals (CA), in CA-G.R. HC-NO. 03269, which affirmed the
February 13, 2008 Decision[2] of the Regional Trial Court, Branch
41, Dagupan City (RTC), in Criminal Case No. 2006-0525-D,
finding the accused guilty of violating Section 13, in relation to
Section 11, Article II of Republic Act No. 9165 for Possession of
Dangerous Drugs During Parties, Social Gatherings or Meetings.

The Facts

The Information indicting the accused reads:

That on or about the 2nd day of September

2006, in the City of Dagupan, Philippines, and within
the jurisdiction of this Honorable Court, the above-
named accused, ARNOLD MARTINEZ y ANGELES,
EDGAR DIZON y FERRER, REZIN MARTINEZ y
CAROLINO, ROLAND DORIA y DIAZ and RAFAEL
GONZALES y CUNANAN, without authority of law,
confederating together, acting jointly and helping one
another, did then and there wilfully, unlawfully and
criminally, sniff and possess dangerous drugs
(shabu residues) contained in empty plastic sachets
and rolled aluminum foil, during a party, or at a social
gathering or meeting, or in the proximate company of
at least two (2) person[s].

Contrary to Section 13, Article II, R.A. 9165.[3]

Version of the Prosecution

As culled from the testimonies of prosecution witnesses,

Police Officer 1 Bernard Azardon (PO1 Azardon), one of the
apprehending officers, and Police Inspector Lady Ellen Maranion
(P/Insp. Maranion), the forensic chemical officer, it appears that
on September 2, 2006, at around 12:45 oclock in the afternoon,
PO1 Azardon was on duty at the Police Community Precinct II
along Arellano Street, Dagupan City, when a concerned citizen
entered the precinct and reported that a pot session was going
on in the house of accused Rafael Gonzales (Gonzales) in
Trinidad Subdivision, Dagupan City. Upon receipt of the report,
PO1 Azardon, PO1 Alejandro Dela Cruz (PO1 Dela Cruz), and
members of the Special Weapons and Tactics (SWAT) team
hied to Trinidad Subdivision, Dagupan City. Upon inquiry from
people in the area, the house of Gonzales was located.

As the police officers entered the gate of the house, they

saw accused Orlando Doria (Doria) coming out of the side door
and immediately arrested him. Inside the house, they saw
accused Gonzales, Arnold Martinez (A. Martinez), Edgar
Dizon (Dizon), and Rezin Martinez (R. Martinez) in a room. The
four were surprised by the presence of the police. In front of them
were open plastic sachets (containing shabu residue), pieces of
rolled used aluminum foil and pieces of used aluminum foil.

The accused were arrested and brought to the police

precinct. The items found in the room were seized and turned
over to the Pangasinan Provincial Police Crime Laboratory
Officer, P/Insp. Maranion. The latter conducted a laboratory
examination on the seized items and all 115 plastic sachets, 11
pieces of rolled used aluminum foil, and 27 of the 49 pieces of
used aluminum foil tested positive for methamphetamine
hydrochloride. The accused were subjected to a drug test and,
except for Doria, they were found to be positive for
methamphetamine hydrochloride.

Version of the Defense

The defense, through its witnesses, accused A. Martinez, Dizon,

and R. Martinez, claimed that in the morning of September 2,
2006, the three of them were along Arellano Street in Trinidad
Subdivision, Dagupan City, to meet with a certain Apper who
bumped the passenger jeep of R. Martinez and who was to give
the materials for the painting of said jeep. As they were going
around the subdivision looking for Apper, they saw Gonzales in
front of his house and asked him if he noticed a person pass
by. While they were talking, Doria arrived. It was then that five to
seven policemen emerged and apprehended them. They were
handcuffed and brought to the police station in
Perez, Dagupan City, where they were incarcerated and
charged with sniffing shabu.

The Ruling of the RTC

The case against Doria was dismissed on a demurrer to

evidence.

On February 13, 2008, the RTC rendered its decision, the

dispositve portion of which reads:

WHEREFORE, premises considered,

judgment is hereby rendered finding accused
ARNOLD MARTINEZ y Angeles, EDGAR DIZON y
Ferrer, REZIN MARTINEZ y Carolino, and RAFAEL
GONZALES y Cunanan GUILTY beyond reasonable
doubt of the crime of Possession of Dangerous
Drugs During Parties, Social Gatherings or Meetings
defined and penalized under Section 13 in relation to
 Section 11, Article II of Republic Act 9165, and each
of them is sentenced to suffer the penalty of life
imprisonment and to pay the fine in the amount of
P500,000.00, and to pay the cost of suit.

The subject items are hereby forfeited in favor

of the government and to be disposed of in
accordance with the law.

SO ORDERED.[4]

The RTC was of the view that the positive testimony of

prosecution witness PO1 Azardon, without any showing of ill-
motive on his part, prevailed over the defenses of denial and alibi
put up by the accused. The accused were held to have been in
constructive possession of the subject items. A conspiracy was
also found present as there was a common purpose to possess
the dangerous drug.

The Ruling of the CA

The CA ruled that there was sufficient evidence to support

the findings of the RTC as to the constructive possession of the
dangerous drugs by the accused. It further held that although the
procedure regarding the custody and disposition of evidence
prescribed by Section 21 of R.A. No. 9165 was not strictly
complied with, the integrity and evidentiary value of the evidence
were nonetheless safeguarded. The CA was of the view that the
presumption of regularity in the performance of official duty was
not sufficiently controverted by the accused.

Not in conformity, the accused now interposes this appeal

before this Court praying for the reversal of the subject decision,
presenting the following

Assignment of Errors

For accused Arnold Martinez, Edgar Dizon and Rezin

Martinez

1. The lower court erred in finding the accused-

appellants
to be having a pot session at the time of their
arrest;
 2. The lower court erred in not seeing through
the antics of the police to plant the shabu
paraphernalia to justify the arrest of the
accused-appellants without warrant;

3. The lower court erred in not finding that

the corpus delicti has not been sufficiently
established;

4. The lower court erred in not finding the

uncorroborated testimony of PO1 Azardon
insufficient to convict the accused-appellants
of the crime charged;

5. The lower court erred in not acquitting the

accused-appellants.

For accused Rafael Gonzales

THE TRIAL COURT GRAVELY ERRED IN

CONVICTING THE ACCUSED-APPELLANT
DESPITE THE PROSECUTIONS FAILURE TO
OVERTHROW THE CONSTITUTIONAL
PRESUMPTION OF INNOCENCE.

II

THE TRIAL COURT GRAVELY ERRED IN

CONVICTING THE ACCUSED-APPELLANT
DESPITE THE PROSECUTIONS FAILURE TO
ESTABLISH THE CHAIN OF CUSTODY OF THE
ALLEGED CONFISCATED DRUG.

After an assiduous assessment of the evidentiary records,

the Court finds that the prosecution failed to prove the guilt of the
accused. The principal reasons are 1] that the evidence against
the accused are inadmissible; and 2] that granting the same to
be admissible, the chain of custody has not been duly
established.

Illegal Arrest, Search and Seizure

Indeed, the accused is estopped from assailing the legality

of his arrest if he fails to raise such issue before
arraignment.[5] However, this waiver is limited only to the arrest.
The legality of an arrest affects only the jurisdiction of the court
over the person of the accused. A waiver of an illegal warrantless
arrest does not carry with it a waiver of the inadmissibility of
evidence seized during the illegal warrantless arrest.[6]

Although the admissibility of the evidence was not raised

as in issue by the accused, it has been held that this Court has
the power to correct any error, even if unassigned, if such is
necessary in arriving at a just decision,[7] especially when the
transcendental matter of life and liberty is at stake.[8] While it is
true that rules of procedure are intended to promote rather than
frustrate the ends of justice, they nevertheless must not be met
at the expense of substantial justice. Time and again, this Court
has reiterated the doctrine that the rules of procedure are mere
tools intended to facilitate the attainment of justice, rather than
frustrate it. Technicalities should never be used to defeat
substantive rights.[9]Thus, despite the procedural lapses of the
accused, this Court shall rule on the admissibility of the evidence
in the case at bench. The clear infringement of the accuseds right
to be protected against unreasonable searches and seizures
cannot be ignored.

The State cannot, in a manner contrary to its constitutional

guarantee, intrude into the persons of its citizens as well as into
their houses, papers and effects.[10] Sec. 2, Art. III, of the 1987
Constitution provides:

Section 2. - The right of the people to be secure in

their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever
nature and for any purpose shall be inviolable, and
no search warrant or warrant of arrest shall issue
except upon probable cause to be determined
personally by the judge after examination under oath
or affirmation of the complainant and the witnesses
he may produce, and particularly describing the
place to be searched and the persons or things to be
seized.

This constitutional guarantee, however, is not a blanket

prohibition against all searches and seizures without warrant.
Arrests and seizures in the following instances are allowed even
in the absence of a warrant (i) warrantless search incidental to a
lawful arrest;[11] (ii) search of evidence in "plain view;" (iii) search
of a moving vehicle; (iv) consented warrantless search; (v)
customs search; (vi) stop and frisk; and (vii) exigent and
emergency circumstances.[12]

This case would appear to fall under either a warrantless

search incidental to a lawful arrest or a plain view search, both of
which require a lawful arrest in order to be considered valid
exceptions to the constitutional guarantee. Rule 113 of the
Revised Rules of Criminal Procedure provides for the
circumstances under which a warrantless arrest is lawful. Thus:

Sec. 5. Arrest without warrant; when lawful. A

peace officer or a private person may, without a
warrant, arrest a person:

(a) When, in his presence, the person to

be arrested has committed, is actually
committing, or is attempting to commit
an offense;
(b) When an offense has just been
committed and he has probable cause
to believe based on personal
knowledge of facts or circumstances
that the person to be arrested has
committed it; and

(c) When the person to be arrested is a

prisoner who has escaped from a
penal establishment or place where he
is serving final judgment or is
temporarily confined while his case is
pending, or has escaped while being
transferred from one confinement to
another.

In cases falling under paragraphs (a) and (b)

above, the person arrested without a warrant shall be
forthwith delivered to the nearest police station or jail
and shall be proceeded against in accordance with
section 7 of Rule 112.

A review of the facts reveal that the arrest of the accused

was illegal and the subject items were confiscated as an incident
thereof. According to the testimony of PO1 Azardon and his Joint
Affidavit[13] with PO1 Dela Cruz, they proceeded to, and entered,
the house of accused Gonzales based solely on the report of a
concerned citizen that a pot session was going on in said house,
to wit:
Q: I go back to the information referred to you by the
informant, did he not tell you how many
persons were actually conducting the pot
session?
A: Yes, sir.

Q: When you went to the place of Rafael Gonzales,

of course you were not armed with a search
warrant, correct?
A: None, sir.

Q: Before the information was given to you by your

alleged informant, you did not know personally
Rafael Gonzales?
A: I have not met [him] yet but I heard his name, sir.

Q: When this informant told you that he was told that

there was [an] ongoing pot session in the
house of Rafael Gonzales, was this report to
you placed in the police blotter before you
proceeded to the house of Rafael Gonzales?
A: I think it was no longer recorded, sir.

Q: In other words, you did not even bother to get the

personal data or identity of the person who told
you that he was allegedly informed that there
was an ongoing pot session in the house of
Rafael Gonzales?
A: What I know is that he is a jeepney driver of a
downtown jeepney but he does not want to be
identified because he was afraid, sir.

Q: And likewise, he did not inform you who told him

that there was an ongoing pot session in the
house of Rafael Gonzales?
A: No more, sir.

Q: But upon receiving such report from that jeepney

driver you immediately formed a group and
went to the place of Rafael Gonzales?
A: Yes, sir.

xxx

Q: When you were at the open gate of the premises

of Rafael Gonzales, you could not see what is
 happening inside the house of Rafael
Gonzales?
A: Yes, sir.

Q: You did not also see the alleged paraphernalia as

well as the plastic sachet of shabu on the table
while you were outside the premises of the
property of Rafael Gonzales?

xxx

Q: Before they entered the premises they could not

see the paraphernalia?

COURT: Answer.

A: Of course because they were inside the room,

how could we see them, sir.

Q: But still you entered the premises, only because a

certain person who told you that he was
informed by another person that there was an
ongoing pot session going on inside the house
of Rafael Gonzales?
A: Yes, sir.

Q: And that is the only reason why you barged in

inside the house of Rafael Gonzales and you
arrested the persons you saw?
A: Yes, sir.[14]

Paragraph (c) of Rule 113 is clearly inapplicable to this

case. Paragraphs (a) and (b), on the other hand, may be
applicable and both require probable cause to be present in order
for a warrantless arrest to be valid. Probable cause has been
held to signify a reasonable ground of suspicion supported by
circumstances sufficiently strong in themselves to warrant a
cautious mans belief that the person accused is guilty of the
offense with which he is charged.[15]

Although this Court has ruled in several dangerous drugs

cases[16] that tipped information is sufficient probable cause to
effect a warrantless search,[17] such rulings cannot be applied in
the case at bench because said cases involve either a buy-bust
operation or drugs in transit, basically, circumstances other than
the sole tip of an informer as basis for the arrest. None of these
drug cases involve police officers entering a house without
warrant to effect arrest and seizure based solely on an informers
tip. The case ofPeople v. Bolasa[18] is informative on this matter.

In People v. Bolasa, an anonymous caller tipped off the

police that a man and a woman were repacking prohibited drugs
at a certain house. The police immediately proceeded to the
house of the suspects. They walked towards the house
accompanied by their informer. When they reached the house,
they peeped inside through a small window and saw a man and
woman repacking marijuana. They then entered the house,
introduced themselves as police officers, confiscated the drug
paraphernalia, and arrested the suspects. This Court ruled:

The manner by which accused-appellants were

apprehended does not fall under any of the above-
enumerated categories. Perforce, their arrest is
illegal. First, the arresting officers had no personal
knowledge that at the time of their arrest, accused-
appellants had just committed, were committing, or
were about to commit a crime. Second, the arresting
officers had no personal knowledge that a crime was
committed nor did they have any reasonable ground
to believe that accused-appellants committed it.
Third, accused-appellants were not prisoners who
have escaped from a penal establishment.
Neither can it be said that the objects were
seized in plain view. First, there was no valid
intrusion. As already discussed, accused-appellants
were illegally arrested. Second, the evidence, i.e.,
the tea bags later on found to contain marijuana, was
not inadvertently discovered. The police officers
intentionally peeped first through the window before
they saw and ascertained the activities of accused-
appellants inside the room. In like manner, the
search cannot be categorized as a search of a
moving vehicle, a consented warrantless search, a
customs search, or a stop and frisk; it cannot even
fall under exigent and emergency circumstances, for
the evidence at hand is bereft of any such showing.
On the contrary, it indicates that the
apprehending officers should have conducted first a
surveillance considering that the identities and
address of the suspected culprits were already
ascertained. After conducting the surveillance and
determining the existence of probable cause for
 arresting accused-appellants, they should have
secured a search warrant prior to effecting a valid
arrest and seizure. The arrest being illegal ab initio,
the accompanying search was likewise illegal. Every
evidence thus obtained during the illegal search
cannot be used against accused-appellants; hence,
their acquittal must follow in faithful obeisance to the
fundamental law.[19]

It has been held that personal knowledge of facts in arrests

without warrant must be based upon probable cause, which
means an actual belief or reasonable grounds of suspicion. The
grounds of suspicion are reasonable when the suspicion, that the
person to be arrested is probably guilty of committing an offense,
is based on actual facts, that is, supported by circumstances
sufficiently strong in themselves to create the probable cause of
guilt of the person to be arrested. [20]

As to paragraph (a) of Section 5 of Rule 113, the arresting

officers had no personal knowledge that at the time of the arrest,
accused had just committed, were committing, or were about to
commit a crime, as they had no probable cause to enter the
house of accused Rafael Gonzales in order to arrest them. As to
paragraph (b), the arresting officers had no personal knowledge
of facts and circumstances that would lead them to believe that
the accused had just committed an offense. As admitted in the
testimony of PO1 Azardon, the tip originated from a concerned
citizen who himself had no personal knowledge of the information
that was reported to the police:

Q: Mr. Witness, you claimed that the reason for

apprehending all the accused was based on a
tip-off by an informant?
A: Yes, sir.

Q: What exactly [did] that informant tell you?

A: He told us that somebody told him that there was
an ongoing pot session in the house of one of
the accused Rafael Gonzales, sir.

Q: You mean to say that it was not the informant

himself to whom the information originated but
from somebody else?
A: That was what he told me, sir.
 Q: Because of that you proceeded to where the
alleged pot session was going on? [No Answer]

Q: Did you[r] informant particularly pinpointed [sic] to

where the alleged pot session was going on?
A: No more because he did not go with us, sir.

Q: So you merely relied on what he said that

something or a pot session was going on
somewhere in Arellano but you dont know the
exact place where the pot session was going
on?
A: Yes, sir.

Q: And your informant has no personal

knowledge as to the veracity of the alleged pot
session because he claimed that he derived
that information from somebody else?
A: This is what he told us that somebody told him that
there was an ongoing pot session, sir.

Q: Despite of [sic] that information you proceeded to

where?
A: Trinidad Subdivision, sir.

xxx

Q: Mr. Witness, did your informant named [sic] those

included in the alleged pot session?
A: No, sir.

Q: That was, because your informant dont [sic] know

physically what was really happening there?
A: He was told by another person that there was an
ongoing pot session there, sir.[21] [Emphasis
supplied]

Neither can it be said that the subject items were seized in

plain view. The elements of plainview are: (a) a prior valid
intrusion based on the valid warrantless arrest in which the police
are legally present in the pursuit of their official duties; (b) the
evidence was inadvertently discovered by the police who have
the right to be where they are; (c) the evidence must be
immediately apparent; and, (d) "plain view" justified mere seizure
of evidence without further search.[22]
 The evidence was not inadvertently discovered as the
police officers intentionally entered the house with no prior
surveillance or investigation before they discovered the accused
with the subject items. If the prior peeking of the police officers
in Bolasa was held to be insufficient to constitute plain view, then
more so should the warrantless search in this case be struck
down. Neither can the search be considered as a search of a
moving vehicle, a consented warrantless search, a customs
search, a stop and frisk, or one under exigent and emergency
circumstances.

The apprehending officers should have first conducted a

surveillance considering that the identity and address of one of
the accused were already ascertained. After conducting the
surveillance and determining the existence of probable cause,
then a search warrant should have been secured prior to
effecting arrest and seizure. The arrest being illegal, the ensuing
search as a result thereof is likewise illegal. Evidence procured
on the occasion of an unreasonable search and seizure is
deemed tainted for being the proverbial fruit of a poisonous tree
and should be excluded.[23] The subject items seized during the
illegal arrest are thus inadmissible. The drug, being the
very corpus delicti of the crime of illegal possession of
dangerous drugs, its inadmissibility thus precludes conviction,
and calls for the acquittal of the accused.

As has been noted previously by this Court, some lawmen,

prosecutors and judges have glossed over illegal searches and
seizures in cases where law enforcers are able to present the
alleged evidence of the crime, regardless of the methods by
which they were obtained. This attitude tramples on
constitutionally-guaranteed rights in the name of law
enforcement. It is ironic that such enforcement of the law fosters
the breakdown of our system of justice and the eventual
denigration of society. While this Court appreciates and
encourages the efforts of law enforcers to uphold the law and to
preserve the peace and security of society, we nevertheless
admonish them to act with deliberate care and within the
parameters set by the Constitution and the law.[24]

Chain of Custody

Even granting that the seized items are admissible as evidence,

the acquittal of the accused would still be in order for failure of
the apprehending officers to comply with the chain of custody
requirement in dangerous drugs cases.
 The accused contend that the identity of the seized drug
was not established with moral certainty as the chain of custody
appears to be questionable, the authorities having failed to
comply with Sections 21 and 86 of R.A. No. 9165, and
Dangerous Drug Board (DDB) Resolution No. 03, Series of
1979, as amended by Board Regulation No. 2, Series of 1990.
They argue that there was no prior coordination with the
Philippine Drug Enforcement Agency (PDEA), no inventory of
the confiscated items conducted at the crime scene, no
photograph of the items taken, no compliance with the rule
requiring the accused to sign the inventory and to give them
copies thereof, and no showing of how the items were handled
from the time of confiscation up to the time of submission to the
crime laboratory for testing. Therefore, the corpus delicti was not
proven, thereby producing reasonable doubt as to their
guilt. Thus, they assert that the presumption of innocence in their
favor was not overcome by the presumption of regularity in the
performance of official duty.

The essential requisites to establish illegal possession of

dangerous drugs are: (i) the accused was in possession of the
dangerous drug, (ii) such possession is not authorized by law,
and (iii) the accused freely and consciously possessed the
dangerous drug.[25] Additionally, this being a case for violation of
Section 13 of R.A. No. 9165, an additional element of the crime
is (iv) the possession of the dangerous drug must have occurred
during a party, or at a social gathering or meeting, or in the
proximate company of at least two (2) persons.

The existence of the drug is the very corpus delicti of the

crime of illegal possession of dangerous drugs and, thus, a
condition sine qua non for conviction. In order to establish the
existence of the drug, its chain of custody must be sufficiently
established. The chain of custody requirement is essential
to ensure that doubts regarding the identity of the evidence are
removed through the monitoring and tracking of the movements
of the seized drugs from the accused, to the police, to the
forensic chemist, and finally to the court.[26] Malillin v. People was
the first in a growing number of cases to explain the importance
of chain of custody in dangerous drugs cases, to wit:

As a method of authenticating evidence, the

chain of custody rule requires that the admission of
an exhibit be preceded by evidence sufficient to
support a finding that the matter in question is what
 the proponent claims it to be. It would include
testimony about every link in the chain, from the
moment the item was picked up to the time it is
offered into evidence, in such a way that every
person who touched the exhibit would describe how
and from whom it was received, where it was and
what happened to it while in the witness' possession,
the condition in which it was received and the
condition in which it was delivered to the next link in
the chain. These witnesses would then describe the
precautions taken to ensure that there had been no
change in the condition of the item and no
opportunity for someone not in the chain to have
possession of the same.[27]

Section 1(b) of DDB Regulation No. 1, Series of

[28]
2002, defines chain of custody as follows:

b. Chain of Custody means the duly recorded

authorized movements and custody of seized drugs
or controlled chemicals or plant sources of dangerous
drugs or laboratory equipment of each stage, from the
time of seizure/confiscation to receipt in the forensic
laboratory to safekeeping to presentation in court for
destruction. Such record of movements and custody
of seized item shall include the identity and signature
of the person who held temporary custody of the
seized item, the date and time when such transfer of
custody were made in the course of safekeeping and
used in court as evidence, and the final disposition;

Paragraph 1, Section 21, Article II of R.A. No. 9165,

provides for safeguards for the protection of the identity and
integrity of dangerous drugs seized, to wit:

SEC. 21. Custody and Disposition of Confiscated,

Seized, and/or Surrendered Dangerous Drugs, Plant
Sources of Dangerous Drugs, Controlled Precursors
and Essential Chemicals, Instruments/Paraphernalia
and/or Laboratory Equipment. The PDEA shall take
charge and have custody of all dangerous drugs,
plant sources of dangerous drugs controlled
precursors and essential chemicals, as well as
instruments/paraphernalia and/or laboratory
equipment so confiscated, seized and/or
surrendered, for proper disposition in the following
manner:
 (1) The apprehending team having initial custody and
control of the drugs shall, immediately after seizure
and confiscation, physically inventory and photograph
the same in the presence of the accused or the
person/s from whom such items were confiscated
and/or seized, or his/her representative or counsel, a
representative from the media and the Department of
Justice (DOJ), and any elected public official who
shall be required to sign the copies of the inventory
and be given a copy thereof.

People v. Habana thoroughly discusses the proper

procedure for the custody of seized or confiscated items in
dangerous drugs cases in order to ensure their identity and
integrity, as follows:

Usually, the police officer who seizes the

suspected substance turns it over to a supervising
officer, who would then send it by courier to the police
crime laboratory for testing. Since it is unavoidable
that possession of the substance changes hand a
number of times, it is imperative for the officer who
seized the substance from the suspect to place his
marking on its plastic container and seal the same,
preferably with adhesive tape that cannot be
removed without leaving a tear on the plastic
container. At the trial, the officer can then identify the
seized substance and the procedure he observed to
preserve its integrity until it reaches the crime
laboratory.

If the substance is not in a plastic container, the

officer should put it in one and seal the same. In this
way the substance would assuredly reach the
laboratory in the same condition it was seized from
the accused. Further, after the laboratory technician
tests and verifies the nature of the substance in the
container, he should put his own mark on the plastic
container and seal it again with a new seal since the
police officers seal has been broken. At the trial, the
technician can then describe the sealed condition of
the plastic container when it was handed to him and
testify on the procedure he took afterwards to
preserve its integrity.
 If the sealing of the seized substance has not
been made, the prosecution would have to present
every police officer, messenger, laboratory
technician, and storage personnel, the entire chain of
custody, no matter how briefly ones possession has
been. Each of them has to testify that the substance,
although unsealed, has not been tampered with or
substituted while in his care.[29]

Section 21(a) of the Implementing Rules and Regulations

(IRR) of R.A. No. 9165 further elaborates, and provides for, the
possibility of non-compliance with the prescribed procedure:

(a) The apprehending officer/team having initial

custody and control of the drugs shall, immediately
after seizure and confiscation, physically inventory
and photograph the same in the presence of the
accused or the person/s from whom such items were
confiscated and/or seized, or his/her representative or
counsel, a representative from the media and the
Department of Justice (DOJ), and any elected public
official who shall be required to sign the copies of the
inventory and be given a copy thereof: Provided, that
the physical inventory and photograph shall be
conducted at the place where the search warrant is
served; or at the nearest police station or at the
nearest office of the apprehending officer/team,
whichever is practicable, in case of warrantless
seizures; Provided, further that non-compliance
with these requirements under justifiable
grounds, as long as the integrity and the
evidentiary value of the seized items are properly
preserved by the apprehending officer/team, shall
not render void and invalid such seizures of and
custody over said items. [Emphasis supplied]

Accordingly, non-compliance with the prescribed procedural

requirements will not necessarily render the seizure and custody
of the items void and invalid, provided that (i) there is a justifiable
ground for such non-compliance, and (ii) the integrity and
evidentiary value of the seized items are properly preserved. In
this case, however, no justifiable ground is found availing, and it
is apparent that there was a failure to properly preserve the
integrity and evidentiary value of the seized items to ensure the
identity of the corpus delicti from the time of seizure to the time
of presentation in court. A review of the testimonies of the
prosecution witnesses and the documentary records of the case
reveals irreparably broken links in the chain of custody.

According to the apprehending police officers in their Joint

Affidavit, the following were confiscated from the accused, to wit:

a) Several pcs of used empty plastic sachets

containing suspected shabu residues.

b) Eight used (8) disposable lighters ( two (2) pcs

colored orange, two (2) pcs colored yellow, one
(1) pc colored green & one (1) pc colored white ).

c) Several pcs of used rolled aluminum foil

containing suspected shabu residues.

d) Several pcs of used cut aluminum foil

containing suspected shabu residues.

e) One (1) pc glass tube containing suspected

shabu residues.[30]
[Emphases
supplied]

At the police station, the case, the accused, and the above-
mentioned items were indorsed to Duty Investigator Senior
Police Officer 1 Pedro Urbano, Jr. (SPO1 Urbano) for proper
disposition.[31] A letter-request for laboratory examination was
prepared by Police Superintendent Edgar Orduna Basbag for the
following items:

a) Pieces of used empty small plastic sachets

with suspected shabu residues marked DC&A-1.

b) Pieces of used rolled and cut aluminum foil

with suspected shabu residues marked DC&A-2.

c) Pieces of used cut aluminum foil with

suspected shabu residues marked DC&A-3.[32]
[Emphases supplied]

The letter-request and above-mentioned items were

submitted to P/Insp. Maranion by SPO3 Froilan Esteban (SPO3
Esteban). Final Chemistry Report No. D-042-06L listed the
specimens which were submitted for testing, to wit:

SPECIMENS SUBMITTED:
 A A1 to A115 One Hundred fifteen (115) open
transparent plastic sachet with tag each containing
suspected shabu residue without markings.

B B1 to B11 Eleven (11) rolled used aluminum foil

with tag each containing suspected shabu
residue without markings.

C C1 to C49 Forty-nine (49) used aluminum foil with

tag each containing suspected shabu
[33]
residue without markings.
[Emphases supplied]

Three days after the subject items were seized, or

on September 5, 2006, a Confiscation Receipt was issued by
PO1 Azardon and PO1 Dela Cruz, which reads:

DCPS AID SOTG 05 September 2006

CONFISCATION RECEIPT

TO WHOM IT MAY CONCERN:

THIS IS TO CERTIFY that on or about 12:45

noon of September 4, 2006, we together with our
precinct supervisor, SPO4 Pedro Belen Jr., and
SWAT members composed of SPO1 Marlon
Decano, PO3 Manuel Garcia, PO2 Adriano Cepiroto
and PO1 Aldrin Guarin apprehended the following
names of persons of ARNOLD MARTINEZ Y
ANGELES, 37 yrs old, married, jobless, a resident of
Lucao Dist., this city; EDGAR DIZON Y FERRER, 36
yrs old, single, tricycle driver, a resident of 471 Lucao
Dist., this city. REZIN MARTINEZ Y CAROLINO, 44
yrs old, married, jitney driver, a resident of Lucao
Disttrict this city; ROLAND DORIA Y DIAZ, 39 yrs
old, married, businessman, resident of Cabeldatan,
Malasiqui, Pangasinan and RAFAEL GONZALES Y
CUNANAN, 49 yrs old, separated, jobless and a
resident of Trinidad Subd., Arellano-Bani this city.

Suspects were duly informed of their

constitutional rights and were brought to Dagupan
City Police
Station, Perez Market Site Dagupan City and
indorsed to Duty Desk Officer to record the incident
 and the sachet of suspected Shabu
Paraphernalias were brought to PNP Crime
Laboratory, Lingayen, Pangasinan for Laboratory
Examination.

Seizing Officer:

(sgd.) (sgd.)
PO1 Bernard B Azardon PO1 Alejandro Dela Cruz
Affiant Affiant

Remarks:

Refused to Signed
Refused to Signed
Refused to Signed
Refused to Signed
Refused to Signed[34]
[Emphases
supplied]

The 115 open transparent plastic sachets, 11 pieces of rolled

used aluminum foil, and 27 (of the 49) pieces of used aluminum
foil, all containing shabu residue, as identified in the Final
Chemistry Report, were presented in court and marked as
Exhibits H and series, I and series, and J and series,
respectively. Said items were identified by PO1 Azardon and
P/Insp. Maranion at the witness stand.[35]

The CA ruled that the integrity and evidentiary value of the

subject items were properly preserved as there was sufficient
evidence to prove that the items seized from the accused were
the same ones forwarded to the crime laboratory for examination,
as shown in the Confiscation Receipt and the letter-request for
laboratory examination.

A review of the chain of custody indicates, however, that

the CA is mistaken.

First, the apprehending team failed to comply with Section 21 of

R.A. No. 9165. After seizure and confiscation of the subject
items, no physical inventory was conducted in the presence of
the accused, or their representative or counsel, a representative
from the media and the DOJ, and any elected public official.
Thus, no inventory was prepared, signed, and provided to the
accused in the manner required by law. PO1 Azardon, in his
testimony,[36] admitted that no photographs were taken. The only
discernable reason proffered by him for the failure to comply with
the prescribed procedure was that the situation happened so
suddenly. Thus:

Q: But upon receiving such report from that jeepney

driver you immediately formed a group and
went to the place of Rafael Gonzales?
A: Yes, sir.

Q: Such that you did not even inform the PDEA

before you barged in that place of Rafael
Gonzales?
A: It was so suddenly, [sic] sir.

Q: And that explains the reason why you were not

able to have pictures taken, is that correct?
A: Yes, sir.[37]
[Emphasis
supplied]

The Court does not find such to be a justifiable ground to

excuse non-compliance. The suddenness of the situation cannot
justify non-compliance with the requirements. The police officers
were not prevented from preparing an inventory and taking
photographs. In fact, Section 21(a) of the IRR of R.A. No. 9165
provides specifically that in case of warrantless seizures, the
inventory and photographs shall be done at the nearest police
station or at the nearest office of the apprehending officer/team.
Whatever effect the suddenness of the situation may have had
should have dissipated by the time they reached the police
station, as the suspects had already been arrested and the items
seized.Moreover, it has been held that in case of warrantless
seizures nothing prevents the apprehending officer from
immediately conducting the physical inventory and photography
of the items at their place of seizure, as it is more in keeping with
the laws intent to preserve their integrity and evidentiary value.[38]
This Court has repeatedly reversed conviction in drug cases for
failure to comply with Section 21 of R.A. No. 9165, resulting in
the failure to properly preserve the integrity and evidentiary value
of the seized items. Some cases are People v. Garcia,[39] People
v. Dela Cruz,[40] People v. Dela Cruz,[41] People v. Santos,
Jr.,[42] People v. Nazareno,[43]People v. Orteza,[44] Zarraga v.
People,[45] and People v. Kimura.[46]

Second, the subject items were not properly marked. The

case of People v. Sanchez is instructive on the requirement of
marking, to wit:
 What Section 21 of R.A. No. 9165 and its
implementing rule do not expressly specify is the
matter of "marking" of the seized items in warrantless
seizures to ensure that the evidence seized upon
apprehension is the same evidence subjected to
inventory and photography when these activities are
undertaken at the police station rather than at the
place of arrest. Consistency with the "chain of
custody" rule requires that the "marking" of the
seized items - to truly ensure that they are the same
items that enter the chain and are eventually the
ones offered in evidence - should be done (1) in the
presence of the apprehended
violator (2) immediately upon confiscation. This
step initiates the process of protecting innocent
persons from dubious and concocted searches, and
of protecting as well the apprehending officers from
harassment suits based on planting of evidence
under Section 29 and on allegations of robbery or
theft.

For greater specificity, "marking" means the

placing by the apprehending officer or the poseur-
buyer of his/her initials and signature on the item/s
seized. x x x Thereafter, the seized items shall be
placed in an envelope or an evidence bag unless the
type and quantity of the seized items require a
different type of handling and/or container. The
evidence bag or container shall accordingly be
signed by the handling officer and turned over to the
next officer in the chain of custody.[47] [Emphasis in
the original]

Nowhere in the testimony of PO1 Azardon or in his Joint

Affidavit with PO1 Dela Cruz does it appear that the subject items
were at all marked. It was only in the letter-request for laboratory
examination that the subject items were indicated to have been
marked with DC&A-1, DC&A-2 and DC&A-3. There is no
showing, however, as to who made those markings and when
they were made. Moreover, those purported markings were
never mentioned when the subject items were identified by the
prosecution witnesses when they took the stand.

The markings appear to pertain to a group of items, that

is, empty plastic sachets, rolled and cut aluminium foil, and cut
aluminium foil, but do not specifically pertain to any individual
item in each group. Furthermore, it was only in the Chemistry
Report[48] that the precise number of each type of item was
indicated and enumerated. The Court notes that in all documents
prior to said report, the subject items were never accurately
quantified but only described as pieces,[49] several pcs,[50] and
shabu paraphernallas.[51]Strangely, the Chemistry Report
indicates that all the subject items had no markings, although
each item was reported to have been marked by P/Insp.
Maranion in the course of processing the subject items during
laboratory examination and testing.[52] Doubt, therefore, arises as
to the identity of the subject items. It cannot be determined with
moral certainty that the subject items seized from the accused
were the same ones subjected to the laboratory examination and
presented in court.

This Court has acquitted the accused for the failure and
irregularity in the marking of seized items in dangerous drugs
cases, such as Zarraga v. People,[53] People v.
[54] [55]
Kimura, and People v. Laxa.

Third, the Confiscation Receipt relied upon by the prosecution

and the courts below gives rise to more uncertainty. Instead of
being prepared on the day of the seizure of the items, it was
prepared only three days after. More important, the receipt did
not even indicate exactly what items were confiscated and their
quantity. These are basic information that a confiscation receipt
should provide. The only information contained in the
Confiscation Receipt was the fact of arrest of the accused and
the general description of the subject items as the sachet of
suspected Shabu paraphernallas were brought to the PNP Crime
Laboratory. The receipt is made even more dubious by PO1
Azardons admission in his testimony[56] that he did not personally
prepare the Confiscation Receipt and he did not know exactly
who did so.

Fourth, according to the Certification[57] issued by the Dagupan

Police Station, the subject items were indorsed by PO1 Dela
Cruz to Duty Investigator SPO1 Urbano for proper
disposition. These were later turned over by SPO3 Esteban to
P/Insp. Maranion. There is, however, no showing of how and
when the subject items were transferred from SPO1 Urbano to
SPO3 Esteban.

Fifth, P/Insp. Maranion appears to be the last person in the chain

of custody. No witness testified on how the subject items were
kept after they were tested prior to their presentation in
court. This Court has highlighted similar shortcomings in People
v. Cervantes,[58] People v. Garcia,[59] People v.
Sanchez,[60] and Malillin v. People.[61]

More irregularities further darken the cloud as to the guilt

of the accused. Contrary to PO1 Azardons testimony[62] that they
were tipped off by a concerned citizen while at the police station,
the Letter[63] to the Executive Director of the DDB states that the
apprehending officers were tipped off while conducting
monitoring/surveillance. Said letter also indicates, as does the
Confiscation Receipt, that the arrest and seizure occurred
on September 4, 2006, and not September 2, 2006, as alleged
in the Information. It was also mentioned in the aforementioned
Certification of the Dagupan Police and Joint Affidavit of the
police officers that a glass tube suspected to contain shabu
residue was also confiscated from the accused. Interestingly, no
glass tube was submitted for laboratory examination.

In sum, numerous lapses and irregularities in the chain of

custody belie the prosecutions position that the integrity and
evidentiary value of the subject items were properly preserved.
The two documents specifically relied on by the CA, the
Confiscation Receipt and the letter-request for laboratory
examination, have been shown to be grossly insufficient in
proving the identity of the corpus delicti. The corpus delicti in
dangerous drugs cases constitutes the drug itself. This means
that proof beyond reasonable doubt of the identity of the
prohibited drug is essential before the accused can be found
guilty.[64]

Regarding the lack of prior coordination with the PDEA

provided in Section 86 of R.A. No. 9165, in People v. Sta.
Maria,[65] this Court held that said section was silent as to the
consequences of such failure, and said silence could not be
interpreted as a legislative intent to make an arrest without the
participation of PDEA illegal, nor evidence obtained pursuant to
such an arrest inadmissible. Section 86 is explicit only in saying
that the PDEA shall be the lead agency in the investigation and
prosecution of drug-related cases. Therefore, other law
enforcement bodies still possess authority to perform similar
functions as the PDEA as long as illegal drugs cases will
eventually be transferred to the latter.

Let it be stressed that non-compliance with Section 21 of

R.A. No. 9165 does not affect the admissibility of the evidence
but only its weight.[66] Thus, had the subject items in this case
been admissible, their evidentiary merit and probative value
would be insufficient to warrant conviction.

It may be true that where no ill motive can be attributed to

the police officers, the presumption of regularity in the
performance of official duty should prevail. However, such
presumption obtains only when there is no deviation from the
regular performance of duty.[67] Where the official act in question
is irregular on its face, the presumption of regularity cannot
stand.

In this case, the official acts of the law enforcers were

clearly shown and proven to be irregular. When challenged by
the evidence of a flawed chain of custody, the presumption of
regularity cannot prevail over the presumption of innocence of
the accused.[68]

This Court once again takes note of the growing number of

acquittals for dangerous drugs cases due to the failure of law
enforcers to observe the proper arrest, search and seizure
procedure under the law.[69] Some bona fide arrests and
seizures in dangerous drugs cases result in the acquittal of the
accused because drug enforcement operatives compromise the
integrity and evidentiary worth of the seized items. It behooves
this Court to remind law enforcement agencies to exert greater
effort to apply the rules and procedures governing the custody,
control, and handling of seized drugs.

It is recognized that strict compliance with the legal

prescriptions of R.A. No. 9165 may not always be possible. Thus,
as earlier stated, non-compliance therewith is not necessarily
fatal. However, the lapses in procedure must be recognized,
addressed and explained in terms of their justifiable grounds, and
the integrity and evidentiary value of the evidence seized must
be shown to have been preserved.[70]

On a final note, this Court takes the opportunity to be

instructive on Sec. 11[71] (Possession of Dangerous Drugs) and
Sec. 15[72] (Use of Dangerous Drugs) of R.A. No. 9165, with
regard to the charges that are filed by law enforcers. This Court
notes the practice of law enforcers of filing charges under Sec.
11 in cases where the presence of dangerous drugs as basis for
possession is only and solely in the form of residue, being
subsumed under the last paragraph of Sec. 11. Although not
incorrect, it would be more in keeping with the intent of the law to
file charges under Sec. 15 instead in order to rehabilitate first time
offenders of drug use, provided that there is a positive
confirmatory test result as required under Sec. 15. The minimum
penalty under the last paragraph of Sec. 11 for the possession of
residue is imprisonment of twelve years and one day, while the
penalty under Sec. 15 for first time offenders of drug use is a
minimum of six months rehabilitation in a government center. To
file charges under Sec. 11 on the basis of residue alone would
frustrate the objective of the law to rehabilitate drug users and
provide them with an opportunity to recover for a second chance
at life.
In the case at bench, the presence of dangerous drugs was
only in the form of residue on the drug paraphernalia, and the
accused were found positive for use of dangerous
drugs. Granting that the arrest was legal, the evidence obtained
admissible, and the chain of custody intact, the law enforcers
should have filed charges under Sec. 15, R.A. No. 9165 or for
use of dangerous drugs and, if there was no residue at all, they
should have been charged under Sec. 14[73] (Possession of
Equipment, Instrument, Apparatus and Other Paraphernalia for
Dangerous Drugs During Parties, Social Gatherings or
Meetings). Sec. 14 provides that the maximum penalty under
Sec. 12[74] (Possession of Possession of Equipment, Instrument,
Apparatus and Other Paraphernalia for Dangerous Drugs) shall
be imposed on any person who shall possess any equipment,
instrument, apparatus and other paraphernalia for dangerous
drugs. Under Sec. 12, the maximum penalty is imprisonment of
four years and a fine of P50,000.00. In fact, under the same
section, the possession of such equipment, apparatus or other
paraphernalia is prima facie evidence that the possessor has
used a dangerous drug and shall be presumed to have violated
Sec. 15.

In order to effectively fulfill the intent of the law to

rehabilitate drug users, this Court thus calls on law enforcers and
prosecutors in dangerous drugs cases to exercise proper
discretion in filing charges when the presence of dangerous
drugs is only and solely in the form of residue and the
confirmatory test required under Sec. 15 is positive for use of
dangerous drugs. In such cases, to afford the accused a chance
to be rehabilitated, the filing of charges for or involving
possession of dangerous drugs should only be done when
another separate quantity of dangerous drugs, other than mere
residue, is found in the possession of the accused as provided
for in Sec. 15.

WHEREFORE, the August 7, 2009 Decision of the Court of

Appeals in CA-G.R. HC-NO. 03269 is REVERSED and SET
ASIDE and another judgment entered ACQUITTING the
accused and ordering their immediate release from detention,
unless they are confined for any other lawful cause.

Let a copy of this decision be furnished the Director of the

Bureau of Corrections, Muntinlupa City, for immediate
implementation. The Director of the Bureau of Corrections is
directed to report to this Court within five days from receipt of this
decision the action he has taken. Copies shall also be furnished
the Director-General, Philippine National Police, and the Director-
General, Philippine Drugs Enforcement Agency, for their
information and guidance.

The Regional Trial Court, Branch 41, Dagupan City, is

directed to turn over the seized items to the Dangerous Drugs
Board for destruction in accordance with law.

SO ORDERED.

JOSE CATRAL MENDOZA

Associate Justice

WE CONCUR:

ANTONIO T. CARPIO
Associate Justice
Chairperson
ANTONIO EDUARDO B. NACHURA DIOSDADO M. PERALTA
Associate Justice Associate Justice

ROBERTO A. ABAD
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been

reached in consultation before the case was assigned to the
writer of the opinion of the Courts Division.

ANTONIO T. CARPIO
Associate Justice
Chairperson

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and

the Division Chairpersons Attestation, I certify that the
conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the
opinion of the Courts Division.

RENATO C. CORONA
Chief Justice
[1]
Rollo, pp. 2-14. Penned by Associate Justice Sixto C. Marella,
Jr. with Associate Justice Magdangal M. De Leon and Associate
Justice Japar B. Dimaampao, concurring.
[2]
Records, pp. 140-145. Penned by Judge Emma M. Torio.
[3]
Id. at 1.
[4]
Id. at 145.
[5]
People v. Palma, G.R. No. 189279, March 9, 2010.
[6]
People v. Racho, G.R. No. 186529, August 3, 2010.
[7]
C.F. Sharp & Co., Inc. v. Northwest Airlines, Inc., 431 Phil 11,
22 (2002).
[8]
People v. Bodoso, 446 Phil. 838, 849-850 (2003).
[9]
San Luis v. Rojas, G.R. No. 159127, March 3, 2008, 547
SCRA 345, 357-358.
[10]
People v. Siton, G.R. No. 169364, September 18, 2009, 600
SCRA 476, 493.
[11]
Rules of Court, Rule 126, Sec. 13.
[12]
People v. Bolasa, 378 Phil. 1073, 1078-1079 (1999).
[13]
Exhibit E, folder of exhibits, p. 11.
[14]
TSN, February 23, 2007, pp. 10-16.
[15]
People v. Ayangao, 471 Phil. 379, 388 (2004).
[16]
Id., People v. Valdez, 363 Phil. 481 (1999); People v.
Montilla, 349 Phil. 640 (1998).
[17]
Id.
[18]
Supra note 13.
[19]
Supra note 13.
[20]
People v. Doria, 361 Phil. 595, 632 (1999).
[21]
TSN, February 23, 2007, pp. 3-5.
[22]
Supra note 13.
[23]
People v. Valdez, 395 Phil. 206, 218 (2000).
[24]
People v. Racho, G.R. No. 186529, August 3, 2010;
citing People v. Nuevas, G.R. No. 170233, February 22, 2007,
516 SCRA 463, 484-485.
[25]
People v. Gutierrez, G.R. No. 177777, December 4, 2009,
607 SCRA 377, 390-391.
[26]
People v. Garcia, G.R. No. 173480, February 25, 2009, 580
SCRA 259, 274.
[27]
G.R. No. 172953, April 30, 2008, 553 SCRA 619, 632-633.
[28]
Guidelines on the Custody and Disposition of Seized
Dangerous Drugs, Controlled Precursors and Essential
Chemicals, and Laboratory Equipment.
[29]
G.R. No. 188900, March 5, 2010.
[30]
Exhibit E, folder of exhibits, p. 11.
[31]
Exhibit G, folder of exhibits, p. 13.
[32]
Exhibit A, folder of exhibits, p. 6.
[33]
Exhibit D, folder of exhibits, p. 10.
[34]
Exhibit F, folder of exhibits, p. 12.
[35]
TSN, February 9, 2007, p. 6; and TSN, January 22, 2007,
pp. 10-12.
[36]
TSN, February 23, 2007, p. 7.
[37]
TSN, February 23, 2007, p. 12.
[38]
People v. Sanchez, G.R. No. 175832, October 15, 2008, 569
SCRA 194, 218.
[39]
Supra note 27.
[40]
G.R. No. 177222, October 29, 2008, 570 SCRA 273.
[41]
G.R. No. 181545, October 8, 2008, 568 SCRA 273.
[42]
G.R. No. 175593, October 17, 2007, 536 SCRA 489.
[43]
G.R. No. 174771, September 11, 2007, 532 SCRA 630.
[44]
G.R. No. 173051, July 31, 2007, 528 SCRA 750.
[45]
G.R. No. 162064, March 14, 2006, 484 SCRA 639.
[46]
471 Phil. 895 (2004).
[47]
Supra note 38.
[48]
Exhibit C, folder of exhibits, p. 9; Exhibit D, folder of exhibits,
p. 10.
[49]
Exhibit A, folder of exhibits, p. 6.
[50]
Exhibit E, folder of exhibits, p. 11; Exhibit G, folder of
exhibits, p. 13.
[51]
Exhibit B, folder of exhibits, p. 7; Exhibit F, folder of exhibits,
p. 12.
[52]
TSN, January 22, 2007, pp. 10-12.
[53]
Supra note 46.
[54]
Supra note 47.
[55]
414 Phil. 156 (2001).
[56]
TSN, February 9, 2007, p. 7; TSN, February 23, 2007, pp. 6-
7.
[57]
Exhibit G, folder of exhibits, p. 13.
[58]
G.R. No. 181494, March 17, 2009, 581 SCRA 762.
[59]
Supra note 27.
[60]
Supra note 39.
[61]
Supra note 28.
[62]
TSN, February 9, 2007, p. 4.
[63]
Exhibit B, folder of exhibits, p. 7.
[64]
People v. Cacao, G.R. No. 180870, January 22, 2010, 610
SCRA 636, 651.
[65]
G.R. No. 171019, February 23, 2007, 516 SCRA 621, 631-
632.
[66]
People v. Del Monte, G.R. No. 179940, April 23, 2008, 552
SCRA 627, 637.
[67]
People v. Obmiranis, G.R. No. 181492, December 16, 2008,
574 SCRA 140, 156-157.
[68]
People v. Peralta, G.R. No. 173477, February 26, 2010.
[69]
People v. Cervantes, G.R. No. 181494, March 17, 2009, 581
SCRA 762, 784-785, citing People v. Garcia, G.R. No. 173480,
February 25, 2009, 580 SCRA 259, 277-278.
[70]
Id. at 785.
[71]
Section 11. Possession of Dangerous Drugs. - The penalty
of life imprisonment to death and a fine ranging from Five
hundred thousand pesos (P500,000.00) to Ten million pesos
(P10,000,000.00) shall be imposed upon any person, who,
unless authorized by law, shall possess any dangerous drug in
the following quantities, regardless of the degree of purity
thereof:
(1) 10 grams or more of opium;
(2) 10 grams or more of morphine;
(3) 10 grams or more of heroin;
(4) 10 grams or more of cocaine or cocaine hydrochloride;
(5) 50 grams or more of methamphetamine hydrochloride
or "shabu";
(6) 10 grams or more of marijuana resin or marijuana resin
oil;
(7) 500 grams or more of marijuana; and
(8) 10 grams or more of other dangerous drugs such as,
but not limited to, methylenedioxymethamphetamine
(MDA) or "ecstasy", paramethoxyamphetamine (PMA),
trimethoxyamphetamine (TMA), lysergic acid diethylamine
(LSD), gamma hydroxyamphetamine (GHB), and those
similarly designed or newly introduced drugs and their
derivatives, without having any therapeutic value or if the
quantity possessed is far beyond therapeutic
requirements, as determined and promulgated by the
Board in accordance to Section 93, Article XI of this Act.
Otherwise, if the quantity involved is less than the foregoing
quantities, the penalties shall be graduated as follows:
(1) Life imprisonment and a fine ranging from Four hundred
thousand pesos (P400,000.00) to Five hundred thousand
pesos (P500,000.00), if the quantity of methamphetamine
hydrochloride or "shabu" is ten (10) grams or more but less
than fifty (50) grams;
(2) Imprisonment of twenty (20) years and one (1) day to
life imprisonment and a fine ranging from Four hundred
thousand pesos (P400,000.00) to Five hundred thousand
pesos (P500,000.00), if the quantities of dangerous drugs
are five (5) grams or more but less than ten (10) grams of
opium, morphine, heroin, cocaine or cocaine
hydrochloride, marijuana resin or marijuana resin oil,
methamphetamine hydrochloride or "shabu", or other
dangerous drugs such as, but not limited to, MDMA or
"ecstasy", PMA, TMA, LSD, GHB, and those similarly
designed or newly introduced drugs and their derivatives,
without having any therapeutic value or if the quantity
possessed is far beyond therapeutic requirements; or three
hundred (300) grams or more but less than five hundred
(500) grams of marijuana; and
(3) Imprisonment of twelve (12) years and one (1) day to
twenty (20) years and a fine ranging from Three hundred
 thousand pesos (P300,000.00) to Four hundred thousand
pesos (P400,000.00), if the quantities of dangerous drugs
are less than five (5) grams of opium, morphine, heroin,
cocaine or cocaine hydrochloride, marijuana resin or
marijuana resin oil, methamphetamine hydrochloride or
"shabu", or other dangerous drugs such as, but not limited
to, MDMA or "ecstasy", PMA, TMA, LSD, GHB, and those
similarly designed or newly introduced drugs and their
derivatives, without having any therapeutic value or if the
quantity possessed is far beyond therapeutic
requirements; or less than three hundred (300) grams of
marijuana.
[72]
Section 15. Use of Dangerous Drugs. A person apprehended
or arrested, who is found to be positive for use of any dangerous
drug, after a confirmatory test, shall be imposed a penalty of a
minimum of six (6) months rehabilitation in a government center
for the first offense, subject to the provisions of Article VIII of this
Act. If apprehended using any dangerous drug for the second
time, he/she shall suffer the penalty of imprisonment ranging
from six (6) years and one (1) day to twelve (12) years and a fine
ranging from Fifty thousand pesos (P50,000.00) to Two hundred
thousand pesos (P200,000.00): Provided, That this Section shall
not be applicable where the person tested is also found to have
in his/her possession such quantity of any dangerous drug
provided for under Section 11 of this Act, in which case the
provisions stated therein shall apply.
[73]
Section 14. Possession of Equipment, Instrument, Apparatus
and Other Paraphernalia for Dangerous Drugs During Parties,
Social Gatherings or Meetings. - The maximum penalty provided
for in Section 12 of this Act shall be imposed upon any person,
who shall possess or have under his/her control any equipment,
instrument, apparatus and other paraphernalia fit or intended for
smoking, consuming, administering, injecting, ingesting, or
introducing any dangerous drug into the body, during parties,
social gatherings or meetings, or in the proximate company of at
least two (2) persons.
[74]
Section 12. Possession of Equipment, Instrument, Apparatus
and Other Paraphernalia for Dangerous Drugs. - The penalty of
imprisonment ranging from six (6) months and one (1) day to four
(4) years and a fine ranging from Ten thousand pesos
(P10,000.00) to Fifty thousand pesos (P50,000.00) shall be
imposed upon any person, who, unless authorized by law, shall
possess or have under his/her control any equipment,
instrument, apparatus and other paraphernalia fit or intended for
smoking, consuming, administering, injecting, ingesting, or
introducing any dangerous drug into the body: Provided, That in
the case of medical practitioners and various professionals who
are required to carry such equipment, instrument, apparatus and
other paraphernalia in the practice of their profession, the Board
shall prescribe the necessary implementing guidelines thereof.
The possession of such equipment, instrument, apparatus and
other paraphernalia fit or intended for any of the purposes
enumerated in the preceding paragraph shall be prima
facie evidence that the possessor has smoked, consumed,
administered to himself/herself, injected, ingested or used a
dangerous drug and shall be presumed to have violated Section
15 of this Act.
G.R. No. 188794, September 02, 2015 - HONESTO OGAYON
Y DIAZ, Petitioner, v. PEOPLE OF THE PHILIPPINES,
Respondent.

SECOND DIVISION

G.R. No. 188794, September 02, 2015

HONESTO OGAYON Y DIAZ, Petitioner, v. PEOPLE OF THE

PHILIPPINES, Respondent.

DECISION

BRION, J.:

We resolve the petition for review on certiorari1 assailing the

Decision2 dated March 31, 2009, and the Resolution3 dated July
10, 2009, of the Court of Appeals (CA) in CA-G.R. CR No.
31154. The appealed decision affirmed the joint
judgment4 dated September 5, 2007, of the Regional Trial
Court (RTC), Branch 12, Ligao City, Albay, which convicted
petitioner Honesto Ogayon of violating Sections 11 and 12,
Article II of Republic Act No. 9165.5

The Antecedent Facts

On December 1, 2003, two Informations were filed against

Ogayon for the crimes allegedly committed as follows:

I. Criminal Case No. 4738:

 That at about 5:20 o'clock (sic) in the morning of
October 2, 2003 at Barangay Iraya, Municipality of
Guinobatan, Province of Albay, Philippines, and
within the jurisdiction of this Honorable Court, the
above-named accused did then and there willfully,
unlawfully and feloniously have in his possession,
custody and control four (4) pcs. of small aluminum
foil, four (4) pcs. of disposable lighter in different
colors, one (1) blade trademark "Dorco," and one
(1) roll aluminum foil, instruments used or intended
to be used for smoking or consuming shabu, without
authority of law, to the damage and prejudice of the
public interest and welfare.6

II. Criminal Case No. 4739:

That at about 5:20 o'clock (sic) in the morning of

October 2, 2003 at Barangay Iraya, Municipality of
Guinobatan, Province of Albay, Philippines and
within the jurisdiction of this Honorable Court, the
above-named accused, with deliberate intent to
violate the law, and without authority of law, did then
and there willfully, unlawfully and feloniously have in
his possession, custody and control two (2) heat-
sealed transparent plastic sachets containing 0.040
gram of methamphetamine hydrochloride (shabu),
with full knowledge that in his possession and
control is a dangerous drug, to the damage and
prejudice of the public interest and welfare.7

During his arraignment in Criminal Case Nos. 4738 and 4739

on January 21, 2004, and March 17, 2004, respectively,
Ogayon denied both charges and pleaded "not guilty." The joint
pre-trial held on May 5, 2004 yielded only one factual admission
on the identity of the accused.8 A joint trial on the merits
ensued.

The Prosecution Version

On October 2, 2003, at around 5:20 a.m., Police Chief

Inspector Elmer Ferrera, together with the other members of
the Albay Provincial Police Office, proceeded to Ogayon's
house in Barangay Iraya, Guinobatan, Albay, to enforce Search
Warrant No. AEK 29-2003.9 The warrant was for the seizure of
shabu and drug paraphernalia allegedly kept and concealed in
the premises of Ogayon's house. Barangay Tanod Jose Lagana
(Tanod Lagana) and Kagawad Lauro Tampocao assisted the
police team in conducting the search.10

Upon reaching Ogayon's house, the police team noticed

several persons inside a nipa hut located nearby. Suspecting
that a pot session was about to be held, the police team
restrained two of the five persons and immediately proceeded
to Ogayon's house. After introducing themselves as police
officers, Senior Police Officer Herminigildo Caritos (SPO4
Caritos) informed Ogayon that they had a warrant to search his
place. SPO4 Caritos handed a copy of the warrant to Ogayon,
who allowed the police team to conduct the search.11

Led by SPO4 Caritos, some members of the police team went

to the comfort room located about five meters away from
Ogayon's house. When they searched the area, they found an
object (wrapped in a piece of paper with blue prints) that fell
from the wooden braces of the roof. Upon SPO4 Caritos'
inspection, the paper contained two (2) small, heat-sealed
transparent plastic sachets that the police team suspected to
contain shabu. The search of the comfort room also uncovered
four (4) disposable lighters, one (1) knife measuring six inches
long, used aluminum foil, one (1) roll of aluminum foil, and a
"Dorco" blade.12 SPO4 Caritos then placed his initials on the
two (2) plastic sachets before joining the rest of the police
officers who were conducting a search in Ogayon's house. The
police officers who searched Ogayon's house found live
ammunition for an M-16 rifle.

After conducting the search, the police team prepared a

Receipt of Property Seized.13 The receipt was signed by the
seizing officers, representatives from the Department of Justice
and the media, and two (2) barangay officials who were present
during the entire operation.14

The police team thereafter arrested Ogayon and the two (2)
other persons who had earlier been restrained, and brought
them to Camp Simeon Ola for booking. The seized items were
likewise brought to the camp for laboratory examination. In his
Chemistry Report,15 Police Superintendent Lorlie Arroyo
(forensic chemist of the Philippine National Police Regional
Crime Laboratory) reported that the two (2) plastic sachets
seized from Ogayon's place tested positive for the presence
of methamphetamine hydrochloride or shabu.16

The Defense Version

The defense presented a different version of the events.

Testifying for himself, Ogayon disavowed any knowledge of the
prohibited drugs and claimed that he saw the seized items for
the first time only when they were being inventoried. His
statements were corroborated by the testimony of his wife,
Zenaida Ogayon.

Ogayon asserted that prior to the search, he was asleep in his

house. His wife Zenaida woke him up because several
policemen and barangay officials came to his house. He
claimed that the police team did not present any search warrant
before conducting the search, and it was only during trial that
he saw a copy of the warrant.

He recounted that the police officers, splitting into two groups,

conducted a simultaneous search of his house and the comfort
room located nearby. He noticed that SPO4 Caritos, who was
part of the group that searched the comfort room, came out and
went to the Barangay Hall. Shortly after, SPO4 Caritos
returned, accompanied by Tanod Lagana. SPO4 Caritos again
went inside the comfort room, leaving Tanod Lagana waiting
outside. SPO4 Caritos thereafter came out from the comfort
room and ran towards Ogayon's house while shouting "positive,
positive."17

The RTC Ruling

On September 5, 2007, the RTC rendered a joint judgment

convicting Ogayon of the two criminal charges against him.
Relying on the presumption of regularity, the RTC rejected
Ogayon's frame-up defense. The dispositive portion of the joint
judgment reads:

WHEREFORE, under the above considerations, judgment is

hereby rendered as follows:

a. In Criminal Case No. 4738, accused, Honesto

Ogayon y Diaz is found GUILTY beyond
reasonable doubt of Violation of Section 12,
Art. II, Republic Act No. 9165, known as the
"Comprehensive Dangerous Drugs Act of
2002," for his unlawful possession of drug
paraphernalia, namely: four (4) pcs. small
aluminum foil, one (1) roll aluminum foil, four
(4) pcs. disposable lighters, and one (1) pc.
blade; thereby sentencing him to suffer the
indeterminate penalty of imprisonment of six
(6) months and one (1) day to two (2) years
 and to pay a FINE often thousand pesos
(P10,000.00);cralawlawlibrary
b. In Criminal Case No. 4739, accused, Honesto
Ogayon y Diaz is found GUILTY beyond
reasonable doubt of Violation of Section 11,
Art. II, Republic Act No. 9165, known as the
"Comprehensive Dangerous Drugs Act of
2002," for his unlawful possession of two (2)
pcs. small heat-sealed plastic sachets
containing methamphetamine hydrochloride or
"shabu," with total net weight of 0.0400 gram;
thereby, sentencing him to suffer the
indeterminate penalty of imprisonment of
twelve (12) years and one (1) day to fourteen
(14) years and to pay a FINE of three hundred
thousand pesos (P300,000.00).18

Ogayon appealed to the CA. This time, he questioned the

validity of the search warrant, claiming it was improperly issued.
He argued that the search warrant was defective for lack of
transcript showing that the issuing judge conducted an
examination of the applicant for search warrant and his
witnesses.
The CA Ruling

In accordance with Section 5, Rule 126 of the Rules of Court, a

judge must examine under oath and in writing an applicant for
search warrant and his witnesses. Although the CA found no
evidence in the records showing compliance with this
requirement, it nevertheless upheld the search warrant's
validity due to Ogayon's failure to make a timely objection
against the warrant during the trial.

That Ogayon objected to the prosecution's formal offer of

exhibits, which included the search warrant, was not sufficient
for the CA. Ogayon merely claimed that the chemistry report
was not executed under oath, the items were not illegal per
se, and that he did not sign the Receipt of Property Seized
since he was not present when the seized items were
confiscated. The CA noted that the objections were not based
on constitutional grounds, and for this reason, concluded that
Ogayon is deemed to have waived the right to question the
legality of the search warrant.19
Based on the search warrant's validity, the CA affirmed
Ogayon's conviction for possession of drugs and drug
paraphernalia. Although the comfort room was located outside
Ogayon's house, the CA declared that he exercised exclusive
control over it and should rightly be held responsible for the
prohibited drugs and paraphernalia found there.

As with the RTC, the CA relied on the presumption of regularity

of the police team's operation and found Ogayon's claim of
frame-up to be unsupported. The CA thus ruled that the
prosecution proved beyond reasonable doubt that Ogayon was
liable for the crimes charged.chanrobleslaw

The Issues

In the present petition, Ogayon raises the following assignment

of errors:

I.

The CA erred in finding that Ogayon had waived his right to

question the legality of the search warrant.

II.

Even granting without admitting that Ogayon had already

waived his right to question the legality of the search
warrant, the search conducted was still highly irregular,
thereby rendering the seized articles as inadmissible in
evidence.

Ogayon primarily argues that there was a violation of his

constitutional right to be secure in his person, house, papers,
and effects against unreasonable searches and seizures. He
denies waiving the right through his supposed failure to assail
the search warrant's validity during the trial. On the contrary, he
claims to have objected to the prosecution's formal offer of the
search warrant.

Even assuming that he questioned the search warrant's validity

only during appeal, Ogayon contends that this should not be
interpreted as a waiver of his right. Since an appeal in a
criminal case throws the whole case open for review, any
objection made on appeal, though not raised before the trial
court, should still be considered.

Ogayon next argues that the search conducted by the police

team on his premises, pursuant to an already defective search
warrant, was highly irregular. He and his spouse were in their
house when SPO4 Caritos allegedly discovered the shabu in
the comfort room located outside their house, so they were not
able to witness the search. Moreover, he claimed that there
were other persons near the premises of his house (and the
comfort room) when the search was conducted. Hence, it could
not indubitably be concluded that the seized items were under
his actual and effective control and possession.chanrobleslaw
The Court's Ruling

The right against unreasonable searches and seizures is one of

the fundamental constitutional rights. Section 2, Article III of the
Constitution, reads:

Section 2. The right of the people to be secure in their persons,

houses, papers, and effects against unreasonable searches
and seizures of whatever nature and for any purpose shall be
inviolable, and no search warrant or warrant of arrest shall
issue except upon probable cause to be determined
personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched
and the persons or things to be seized, [emphasis ours]

This right has been included in our Constitution since 1899

through the Malolos Constitution20 and has been incorporated in
the various organic laws governing the Philippines during the
American colonization,21 the 1935 Constitution,22 and the 1973
Constitution.23

The protection afforded by the right is reinforced by its

recognition as a fundamental human right under the
International Covenant on Civil and Political Rights and the
Universal Declaration of Human Rights,24to both of which the
Philippines is a signatory.25 Both the Covenant and the
Declaration recognize a person's right against arbitrary or
unlawful interference with one's privacy and property.26

Given the significance of this right, the courts must be vigilant in

preventing its stealthy encroachment or gradual depreciation
and ensure that the safeguards put in place for its protection
are observed.

Under Section 2, Article III of the Constitution, the existence of

probable cause for the issuance of a warrant is central to
the right, and its existence largely depends on the finding of
the judge conducting the examination.27 To substantiate a
finding of probable cause, the Rules of Court specifically
require that -

Rule 126, Sec. 5. Examination of complainant; record. - The

judge must, before issuing the warrant, personally examine in
the form of searching questions and answers, in writing
and under oath, the complainant and the witnesses he may
produce on facts personally known to them and attach to
the record their sworn statements, together with the
affidavits submitted. [emphasis ours]

Ogayon's appeal of his conviction essentially rests on his claim

that the search warrant was defective because "there was no
transcript of stenographic notes of the proceedings in which the
issuing judge had allegedly propounded the required searching
questions and answers in order to determine the existence of
probable cause."28We find that the failure to attach to the
records the depositions of the complainant and his
witnesses and/or the transcript of the judge's examination,
though contrary to the Rules, does not by itself nullify the
warrant. The requirement to attach is merely a procedural rule
and not a component of the right. Rules of procedure or
statutory requirements, however salutary they may be, cannot
provide new constitutional requirements.29

Instead, what the Constitution requires is for the judge to

conduct an "examination under oath or affirmation of the
complainant and the witnesses he may produce," after
which he determines the existence of probable cause for
the issuance of the warrant. The examination requirement
was originally a procedural rule found in Section 98 of General
Order No. 58,30 but was elevated as part of the guarantee of the
right under the 1935 Constitution.31 The intent was to ensure
that a warrant is issued not merely on the basis of the affidavits
of the complainant and his witnesses, but only after
examination by the judge of the complainant and his witnesses.
As the same examination requirement was adopted in the
present Constitution, we declared that affidavits of the
complainant and his witnesses are insufficient to establish the
factual basis for probable cause.32 Personal examination by the
judge of the applicant and his witnesses is indispensable, and
the examination should be probing andexhaustive, not merely
routinary or a rehash of the affidavits.33

The Solicitor General argues that the lack of depositions and

transcript does not necessarily indicate that no examination
was made by the judge who issued the warrant in compliance
with the constitutional requirement. True, since in People v.
Tee,34 we declared that -
[T]he purpose of the Rules in requiring depositions to be taken
is to satisfy the examining magistrate as to the existence of
probable cause. The Bill of Rights does not make it an
imperative necessity that depositions be attached to the records
of an application for a search warrant. Hence, said omission is
not necessarily fatal, for as long as there is evidence on
the record showing what testimony was presented.35

Ideally, compliance with the examination requirement is shown

by the depositions and the transcript. In their absence,
however, a warrant may still be upheld if there is evidence
in the records that the requisite examination was made and
probable cause was based thereon. There must be, in the
records, particular facts and circumstances that were
considered by the judge as sufficient to make an independent
evaluation of the existence of probable cause to justify the
issuance of the search warrant.36

The Solicitor General claims that, notwithstanding the absence

of depositions and transcripts, the records indicate an
examination was conducted. In fact, a statement in the search
warrant itself attests to this:
Search Warrant

xxxx

GREETINGS:

It appearing to the satisfaction of the undersigned after

examination under oath of the applicant and his witnesses
that there is probable cause to believe that respondent, without
authority of law, has under his possession and control the
following articles to wit:

—Methamphetamine Hydrochloride "Shabu" and paraphernalia

which are kept and concealed in the premises of his house

particularly in the kitchen and in the CR outside his house both
encircled with a red ballpen, as described in the sketch
attached to the Application for Search Warrant, located at Bgy.
Iraya, Guinobatan, Albay.37(emphasis and underscore ours)

Generally, a judge's determination of probable cause for the

issuance of a search warrant is accorded great deference by a
reviewing court, so long as there was substantial basis for that
determination.38"Substantial basis means that the questions of
the examining judge brought out such facts and circumstances
as would lead a reasonably discreet and prudent man to
believe that an offense has been committed, and the objects in
connection with the offense sought to be seized are in the place
sought to be searched."39

Apart from the statement in the search warrant itself, we

find nothing in the records of this case indicating that the
issuing judge personally and thoroughly examined the
applicant and his witnesses. The absence of depositions and
transcripts of the examination was already admitted; the
application for the search warrant and the affidavits, although
acknowledged by Ogayon himself,40 could not be found in the
records. Unlike in Tee, where the testimony given during trial
revealed that an extensive examination of the applicant's
witness was made by the judge issuing the warrant, the
testimonies given during Ogayon's trial made no reference to
the application for the search warrant. SPO4 Caritos testified
that he was among those who conducted the surveillance
before the application for a search warrant was made.
However, he was not the one who applied for the warrant; in
fact, he testified that he did not know who applied for it.41

The records, therefore, bear no evidence from which we

can infer that the requisite examination was made, and
from which the factual basis for probable cause to issue
the search warrant was derived. A search warrant must
conform strictly to the constitutional requirements for its
issuance; otherwise, it is void. Based on the lack of substantial
evidence that the search warrant was issued after the requisite
examination of the complainant and his witnesses was
made, the Court declares Search Warrant No. AEK 29-2003
a nullity.

The nullity of the search warrant prevents the Court from

considering Ogayon's belated objections thereto.

The CA declared that Ogayon had waived the protection of his

right against unreasonable searches and seizures due to his
failure to make a timely objection against the search warrant's
validity before the trial court. It based its ruling on the
procedural rule that any objections to the legality of the search
warrant should be made during the trial of the case. Section 14,
Rule 126 of the Rules of Court provides the manner to quash a
search warrant or to suppress evidence obtained thereby:
Section 14. Motion to quash a search warrant or to suppress
evidence; where to file. — A motion to quash a search
warrant and/or to suppress evidence obtained thereby may
be filed in and acted upon only by the court where the
action has been instituted. If no criminal action has been
instituted, the motion may be filed in and resolved by the court
that issued the search warrant. However, if such court failed to
resolve the motion and a criminal case is subsequently filed in
another court, the motion shall be resolved by the latter court,
[emphasis ours]

We find the CA's casual treatment of a fundamental right

distressing. It prioritized compliance with a procedural rule over
compliance with the safeguards for a constitutional right.
Procedural rules can neither diminish nor modify substantial
rights;42their non-compliance should therefore not serve to
validate a warrant that was issued in disregard of the
constitutional requirements. As mentioned, the existence of
probable cause determined after examination by the judge of
the complainant and his witnesses is central to the guarantee of
Section 2, Article III of the Constitution. The ends of justice are
better served if the supremacy of the constitutional right against
unreasonable searches and seizures is preserved over
technical rules of procedure.

Moreover, the courts should indulge every reasonable

presumption against waiver of fundamental constitutional
rights; we should not presume acquiescence in the loss of
fundamental rights.43 In People v. Decierdo,44 the Court
declared that "[wjhenever a protection given by the Constitution
is waived by the person entitled to that protection, the
presumption is always against the waiver." The
relinquishment of a constitutional right has to be laid out
convincingly.

In this case, the only evidence that Ogayon waived his

constitutional right was his failure to make a timely motion
during the trial to quash the warrant and to suppress the
presentation of the seized items as evidence. This failure alone,
to our mind, is not a sufficient indication that Ogayon clearly,
categorically, knowingly, and intelligently made a waiver.45 He
cannot reasonably be expected to know the warrant's defect for
lack of data in the records suggesting that defect existed. It
would thus be unfair to construe Ogayon's failure to object as a
waiver of his constitutional right. In People v. Bodoso,46 the
Court noted that "[i]n criminal cases where life, liberty and
property are all at stake... The standard of waiver requires that
it 'not only must be voluntary, but must be knowing, intelligent,
and done with sufficient awareness of the relevant
circumstances and likely consequences.'"

At this point, we note the purpose for the enactment of Section

14, Rule 126 of the Rules of Court - a relatively new provision
incorporated in A.M. No. 00-5-03-SC or the Revised Rules of
Criminal Procedure(effective December 1, 2000). The provision
was derived from the policy guidelines laid down by the Court
in Malaloan v. Court of Appeals47 to resolve the main issue
of where motions to quash search warrants should be filed. In
other words, the provision was "intended to resolve what is
perceived as conflicting decisions on where to file a motion to
quash a search warrant or to suppress evidence seized by
virtue thereof... ,"48 It was certainly not intended to preclude
belated objections against the search warrant's validity,
especially if the grounds therefor are not immediately apparent.
Thus, Malaloan instructs that "all grounds and
objections then available, existent or known shall be raised
in the original or subsequent proceedings for the quashal
of the warrant, otherwise they shall be deemed waived," and
that "a motion to quash shall consequently be governed by the
omnibus motion rule, provided, however, that objections not
available, existent or known during the proceedings for the
quashal of the warrant may be raised in the hearing of the
motion to suppress."

A closer reading of the cases where the Court supposedly

brushed aside belated objections would reveal that the
objections were disregarded because they had been cured or
addressed based on the records.

In Demaisip v. Court of Appeals,49 the accused asserted that

the search warrant was never produced in court, thus
suggesting its absence. The Court, however, noted that "there
were supposed testimonies of its existence."

In People v. Tee,50 the accused claimed that the issuing judge

failed to exhaustively examine the complainant and his
witnesses, and that the complainant's witness (a National
Bureau of Intelligence operative) had no personal knowledge of
the facts comprising probable cause, but the Court brushed
these claims aside. It found that the witness' knowledge of the
facts supporting probable case was not based on hearsay as
he himself assisted the accused in handling the contraband,
and that the issuing judge extensively questioned this witness.

In People v. Torres,51 the accused assailed the validity of the

search conducted pursuant to a search warrant as it was
supposedly made without the presence of at least two
witnesses, but the Court found otherwise, citing the testimonies
taken during the trial contradicting this claim. A similar objection
was made by the accused in People v. Nuñez52, but the Court
noted the testimony of the officer conducting the search who
stated that it was made in the presence of the accused himself
and two barangayofficials.

The rulings in Malaloan v. Court of Appeals,53People v. Court of

Appeals,54 and People v. Correa55 are without significance to
the present case. As mentioned, Malaloan v. Court of
Appeals involved the question of where motions to quash
search warrants should be filed, and the guidelines set therein
was applied in People v. Court of Appeals. People v. Correa, on
the other hand, involved a warrantless search of a moving
vehicle.

We reiterate that the requirement to raise objections against

search warrants during trial is a procedural rule established by
jurisprudence. Compliance or noncompliance with this
requirement cannot in any way diminish the constitutional
guarantee that a search warrant should be issued upon a
finding of probable cause. Ogayon's failure to make a timely
objection cannot serve to cure the inherent defect of the
warrant. To uphold the validity of the void warrant would be to
disregard one of the most fundamental rights guaranteed in our
Constitution.

In the light of the nullity of Search Warrant No. AEK 29-

2003, the search conducted on its authority is likewise null
and void. Under the Constitution, any evidence obtained in
violation of a person's right against unreasonable searches and
seizures shall be inadmissible for any purpose in any
proceeding.56 With the inadmissibility of the drugs seized from
Ogayon's home, there is no more evidence to support his
conviction. Thus, we see no reason to further discuss the other
issues raised in this petition.

WHEREFORE, under these premises, the Decision dated

March 31, 2009, and the Resolution dated July 10, 2009, of the
Court of Appeals in CA-G.R. CR No. 31154
are REVERSED and SET ASIDE. Accordingly, the judgment of
conviction, as stated in the joint judgment dated September 5,
2007, of the Regional Trial Court, Branch 12, Ligao City, Albay,
in Criminal Case Nos. 4738 and 4739, is REVERSED and SET
ASIDE, and petitioner HONESTO OGAYON y DIAZ is
ACQUITTED of the criminal charges against him for violation of
Republic Act No. 9165.

SO ORDERED.chanroblesvirtuallawlibrary

Carpio, (Chairperson), Del Castillo, Perlas-

Bernabe,* and Leonen, JJ., concur.

FIRST DIVISION

G.R. No. Nos. 106286-87 December 1, 1994

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. ROMEO

CUACHON Y SOLER, Accused-Appellant.

The Solicitor-General for plaintiff-appellee.chanrobles virtual

law library
Dante M. Cortina for accused-appellant.

BELLOSILLO, J.:

Accused-appellant ROMEO CUACHON Y SOLER was charged

in Crim. Case No. 1118, together with Ezra King, Alberto
Maniego, Jaime Sylvestre, Danilo Mumar, Carlos Garcia and
Michael McMurray, with having violated Sec. 27, Art. IV, of R.A.
6425 (The Dangerous Drugs Act of 1972), as amended, before
the Regional Trial Court of Makati. The Information alleged that
on 20 November 1988, the accused, in conspiracy with one
another, willfully, unlawfully and feloniously smoked and sniffed
methylamphetamine hydrochloride (commonly known
as shabu), a regulated drug. 1chanrobles virtual law library

In Crim. Case No. 1119, accused-appellant and Ezra King were

charged with violating Sec. 15, Art. III, of the same law. The
Information alleged that on the same date and place the
accused, in conspiracy with one another, willfully, unlawfully
and feloniously sold, gave away, distributed and delivered to
another methylamphetamine hydrochloride without the
corresponding license. 2chanrobles virtual law library

Upon the filing of the two (2) Informations, the trial court issued
warrants for the arrest of all the accused, but only accused-
appellant was arrested; thus he alone stood trial in both
cases.chanroblesvirtualawlibrarychanrobles virtual law library

At the arraignment on 20 October 1989, accused-appellant

pleaded not guilty to both charges. Thereafter, a joint trial was
held. On 16 August 1991, the trial court adjudged him guilty as
charged. In Crim. Case No. 1118 he was imposed a prison term
of twelve (12) years and ordered to pay a fine of P12,000.00,
while in Crim. Case No. 1119 he was sentenced to life
imprisonment and fined P30,000.00. 3chanrobles virtual law
library

Accused-appellant now pleads for reversal of his

conviction.chanroblesvirtualawlibrarychanrobles virtual law
library

The antecedents: On 20 November 1988, at about three o'clock

in the afternoon, a confidential informant reported to the
headquarters of the Southern Police District that there was
rampant selling of shabu in the residence of accused-appellant
located at 7301 J. Victor Street, Barangay Pio del Pilar, Makati.
Forthwith, a team of police officers was formed to conduct a
buy-bust operation against accused-appellant. Designated as
leader of the team was Pfc. Norman Reyes, with Pfc. Jeofrey
Bacani, Pat. Eduardo Ugaddan, Pat. Roy Cantilang, Pfc. Elpidio
Lajom and Pat. Esmeraldo de Felipe as members. During the
planning stage of this operation, Pfc. Reyes assigned Pat.
Ugaddan to act as poseur-buyer. Pfc. Reyes gave Pat.
Ugaddan two (2) P100.00-bills to be utilized as buy-bust
money, which the former had photocopied earlier, and
instructed the latter and the informant to go to the residence of
accused-appellant to carry out the operation. Pfc. Reyes and
his team would serve as backup for Pat. Ugaddan and the
informant. Pfc. Reyes instructed Pat. Ugaddan that in the event
he would be able to buy shabu from accused-appellant, he
(Pat. Ugaddan) should join them where they were positioned
and report on their
mission.chanroblesvirtualawlibrarychanrobles virtual law library

After the briefing, Pfc. Reyes and his team proceeded to J.

Victor Street. As planned, Pat. Ugaddan and the informant
proceeded to the residence of their quarry while Pfc. Reyes and
the other members of the team posted themselves in strategic
places. After a few minutes, Pat. Ugaddan, together with the
informant, reported to Pfc. Reyes that he had succeeded in
buying shabu from appellant worth P150.00 at the same time
presenting the merchandise to Pfc. Reyes. After determining
that it was shabu, Pfc. Reyes and his men immediately
proceeded to the residence of appellant. Pfc. Reyes and his
men entered the house of appellant which was open and went
up to the second floor. In one of the rooms, they found several
men seated around a table, engaged in pot session. One of
those in the room was appellant although he was not
smoking/sniffing shabu or marijuana. Pfc. Reyes saw burnt
marijuana leaves and shabu in aluminum foil, and three (3) tin
foil wrappers containing shabu, among other things. The
paraphernalia he saw consisted of a still lighted improvised
lamp or burner, sniffing tube or tooter, improvised water pipe,
disposable lighter, improvised cutter, and needle with handle.
Pat. Ugaddan pointed accused-appellant and Ezra King to Pfc.
Reyes as the persons who earlier sold shabu to him.
Thereupon, Pfc. Reyes frisked accused-appellant and found in
his person the two (2) P100.00-bills he gave to Pat. Ugaddan
as buy-bust money and a quantity of shabu contained in a
plastic bag.chanroblesvirtualawlibrarychanrobles virtual law
library

For the purpose of conducting the appropriate investigation,

Pfc. Reyes and his men brought accused-appellant and his
companions to the headquarters together with the confiscated
items. Pfc. Reyes then prepared a receipt
of the property seized and gave it to accused-appellant for his
signature. Accused-appellant signed it but only after personally
cancelling out the items designated in said receipt as items
"C" 4 and "D" 5 because according to him, those were not taken
from him nor from his residence. Thereafter, Pfc. Reyes and his
men executed a joint affidavit of arrest and prepared a letter to
the NBI requesting for laboratory examination of the confiscated
items. He ordered Pfc. Bacani to hand-carry the same and the
evidence mentioned therein to the NBI, which the latter
did.chanroblesvirtualawlibrarychanrobles virtual law library

On 21 November 1988, Forensic Chemist Ma. Carina Javier

issued a certification stating that she had found a number of the
evidence positive for marijuana. 6 On 23 November 1988, she
issued another certification stating that she had found the
remaining evidence positive for methylamphetamine
hydrochloride (shabu). 7chanrobles virtual law library

Pat. Ugaddan confirmed the testimony of Pfc. Reyes with

regard to his participation in the buy-bust operation which their
team conducted on 20 November 1988. However, on the
witness stand, he was unable to identify the buy-bust money
and the shabu which he purchased from accused-appellant
because of the length of time, according to him, that had
elapsed.chanroblesvirtualawlibrarychanrobles virtual law library

Accused-appellant presented a different version of the incident

which transpired on 20 November 1988. According to him,
between eight and
eight-thirty in the evening, he was in one of the rooms of his
apartment having dinner with his family. In the other room were
his friends Erza King, Alberto Maniego, Jaime Sylvestre, Danilo
Mumar, Carlos Garcia and Michael McMurray, who were
drinking beer. All of a sudden, he heard a commotion outside
his apartment. When he looked out, he saw several men
chasing a man who was then running towards the side of his
apartment. Then he resumed eating. After a while, he heard
footsteps going up the stairs of his apartment. When he went
out of his room to find out what it was all about, he saw in the
other room about ten (10) men, including his friends. The other
men, who introduced themselves as police officers, were
looking for a certain "Elcid." When they failed to locate "Elcid,"
they started to search the place. He protested but the
policemen ignored him. Over his protestations, the policemen
brought him and his companions to the police headquarters.
The policemen also took the P1,000.00 of his
wife.chanroblesvirtualawlibrarychanrobles virtual law library
The accused denied the testimonies of Pfc. Reyes and Pat.
Ugaddan that he sold shabu to the latter. He also denied the
testimony of Pfc. Reyes that he (Pfc. Reyes) found in his
person two (2) P100.00-bills and a quantity of shabu contained
in a plastic bag. He admitted that he signed the receipt of
property seized but did not read its contents because the police
officers poked guns at him and threatened that something
would happen to him if he refused to do
so.chanroblesvirtualawlibrarychanrobles virtual law library

The errors assigned in this appeal refer mainly to the credibility

of the prosecution witnesses and the circumstances
surrounding the illegal arrest of accused-appellant and the
warrantless search of his
house.chanroblesvirtualawlibrarychanrobles virtual law library

The appellant alleges that while Pfc. Reyes claims to have

confiscated a plastic bag containing shabu from him, this was
never corroborated by any witness. Neither was the claim of
Pat. Ugaddan that he bought shabu from him and Ezra King
worth P150.00 corroborated by any other witness. There was
no testimony about the P50.00 change. Pat. Ugaddan was
even unable to identify on the witness stand the buy-bust
money and the shabu. The policemen
admitted having no warrant of arrest or search warrant when
they arrested accused-appellant and searched his room. No
lawyer assisted him during the custodial investigation,
especially when he was made to sign the receipt of property
seized.chanroblesvirtualawlibrarychanrobles virtual law library

We affirm the conviction of accused-

appellant.chanroblesvirtualawlibrarychanrobles virtual law
library

Section 27, Art. IV, of R.A. 6425 for violation of which accused-
appellant and six (6) others stand charged in Crim. Case No.
1118, provides:

Sec. 27. Criminal Liability of Possessor or User of Dangerous

Drugs During Social Gatherings. - The maximum of the
penalties provided for in Section 8, Article II and Section 16,
Article III of this Act shall be imposed upon any person found
possessing or using any dangerous drug during a party or at a
social gathering or in a group of at least five persons
possessing or using such drugs.

Pfc. Reyes testified that accused-appellant was seated among

six (6) male persons who were engaged in a pot session inside
the room. 8 However, his testimony is contradicted by Pat.
Ugaddan who testified that accused-appellant was not a
participant in the pot session because he was in the adjoining
room. 9 We therefore disagree with the finding of the trial court
that:

. . . . Pfc. Norman Reyes and Pat. Eduardo Ugaddan had

categorically testified that . . . at the time he (accused-
appellant) was found in possession (of methylamphetamine
hydrochloride) he was seated with his six co-accused around a
table, inside one of the rooms of his apartment, with his said
companions smoking/sniffing marijuana/methylamphetamine
hydrochloride. 10chanrobles virtual law library

Nevertheless, the inconsistency does not absolutely free

accused-appellant from criminal liability. We consider the other
explicit testimonies of Pfc. Reyes and Pat. Ugaddan that
accused-appellant was found in possession of a quantity of
methylamphetamine hydrochloride, 11 in which case he is guilty
of violating Sec. 16, Art. III, of R.A. 6425 which provides:

Sec. 16. Possession or Use of Regulated Drugs. - The penalty

of imprisonment ranging from six years and one day to twelve
years and a fine ranging from six thousand to twelve thousand
pesos shall be imposed upon any person who shall possess or
use any regulated drug without the corresponding license or
prescription.

Section 16 of R.A. 7659 (An Act to Impose the Death Penalty

on Certain Heinous Crimes, Amending for that Purpose the
Revised Penal Code, as Amended, other Special Penal Laws,
and for other Purposes), which took effect on 31 December
1993, amended the aforementioned provision which now reads:

Sec. 16. Possession or Use of Regulated Drugs. - The penalty

of reclusion perpetua to death and a fine ranging from five
hundred thousand pesos to ten million pesos shall be imposed
upon any person who shall possess or use any regulated drug
without the corresponding license or prescription, subject to the
provisions of Section 20 hereof (emphasis on amendments
supplied).

On the other hand, Sec. 15, Art. III, of R.A. 6425 for violation of
which accused-appellant and Ezra King were charged in Crim.
Case No. 1119 provides:

Sec. 15. Sale, Administration, Dispensation, Delivery,

Transportation and Distribution of Regulated Drugs. - The
penalty of life imprisonment to death and a fine ranging from
twenty thousand to thirty thousand pesos shall be imposed
upon any person who, unless authorized by law, shall sell,
dispense, deliver, transport or distribute any regulated
drug . . . .

Section 14 of R.A. 7659 likewise amended the aforementioned

provision making the penalty equally severe as that for
possession or use of regulated drugs. Section 15 now reads:

Sec. 15. Sale, Administration, Dispensation, Delivery,

Transportation and Distribution of Regulated Drugs. - The
penalty of reclusion perpetua to death and a fine ranging
fromfive hundred thousand pesos to ten million pesos shall be
imposed upon any person who, unless authorized by law, shall
sell, dispense, deliver, transport or distribute any regulated drug
. . . (emphasis on amendments supplied).

Relying on the straightforward testimonies of Pfc. Reyes and

Pat. Ugaddan that the latter purchased from appellant a
quantity of shabu which he subsequently gave to the former
and the object of the sale having been clarified as such by the
Forensic Chemist, appellant is likewise guilty of having violated
the aforementioned provision. The prosecution witnesses may
have failed to mention the P50.00 change but that by itself does
not diminish their credibility because what is relevant is that the
sale has been established with
certainty.chanroblesvirtualawlibrarychanrobles virtual law library

The determination of the credibility of the law enforcement

agents who conducted the buy-bust operation is addressed to
the sound discretion of the trial court. This case presents no
reason to disturb the rule that the findings of the trial court on
the issue of credibility of the witnesses' testimonies are
accorded great weight and respect on appeal because the trial
judge had firsthand opportunity to examine and observe the
conduct and demeanor of the witnesses when they gave their
testimonies. 12He was placed in a more competent position to
discriminate between the true and the false. 13 Thus, we adopt
the finding of the trial court that the prosecution's witnesses are
credible -

It is established in our jurisprudence that in case of divergence

in the testimonies of the prosecution witnesses and of the
defense witnesses, the Court should accord greater weight to
the testimonies of the former (People v. Patog, 144 SCRA 129)
Obviously, this rule finds application in this case. For here, the
Court is confronted with the conflicting testimonies of Pfc.
Reyes and Pat. Ugaddan, on one hand, and the testimony of
the accused, on the other . . .
.chanroblesvirtualawlibrarychanrobles virtual law library

The court looked far and wide into the records of these cases,
but found nothing that would place in discredit the testimonies
of Pfc. Reyes and Pat. Ugaddan. On the other hand . . . . there
are reasons for the Court not to accept as gospel truth the
testimony of accused Romeo Cuachon. It is thus inevitable for
the Court to rely on the testimonies of the prosecution
witnesses, and conclude that accused Romeo Cuachon is guilty
of the offenses charged in the informations. 14chanrobles virtual
law library

Although accused-appellant attempts to discredit the

testimonies of the peace officers by claiming lack of
corroboration, he has not shown any improper motive why they
testified in the manner that they did. The presumption of
regularity in the performance of official duties has not been
overthrown. 15 Besides, the testimony of a lone prosecution
witness will suffice if positive and sufficiently shows that the
accused committed the offense charged, as in this
case. 16chanrobles virtual law library

Admittedly, Pat. Ugaddan failed to identify on the witness stand

the dangerous drug sold and the two (2) P100-bills.
Nevertheless, such failure is insignificant because those items
were identified in court by Pfc. Reyes who was competent to do
so. The records show that after buying shabufrom accused-
appellant, Pat. Ugaddan immediately gave it to Pfc.
Reyes 17 who was only a block away 18 from the locus criminis.
It was the same shabu which was sent by Pfc. Reyes to the NBI
for laboratory examination. As regards the
buy-bust money, Pfc. Reyes personally recovered it from
accused-appellant. 19Moreover, accused-appellant's argument
only concerns failure to identify the buy-bust money. In several
cases involving failure topresent the buy-bust money, this Court
held that the presentation in evidence of the buy-bust money is
not indispensable for the conviction of an accused provided that
the sale is adequately proved by the prosecution. 20 Otherwise
stated, the absence of marked money does not create a hiatus
in the evidence for the prosecution so long as the dangerous
drug given or delivered by the accused was presented before
the court and the accused was clearly as the
offender. 21chanrobles virtual law library

As for the absence of warrant of arrest and search warrant at

the time the accused-appellant was arrested, Sec. 5, Rule 113,
of the Rules on Criminal Procedure enumerates the instances
when arrest without warrant is considered lawful -

Sec. 5. Arrest without warrant; when lawful. - A peace officer or

a private person may, without a warrant, arrest a person: (a)
When, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to commit an
offense; (b) When an offense has in fact just been committed,
and he has personal knowledge of facts indicating that the
person to be arrested has committed it . . . .

On the basis of the foregoing provisions, the policemen were

not only authorized but also under the obligation to apprehend
accused-appellant even without a warrant to arrest. 22 Pat.
Ugaddan witnessed the illegal act of selling shabu on the
occasion of the buy-bust operation in front of the room of the
accused. Culled from testimony of Pat. Ugaddan, he did not
make the arrest right then and there because there were only
himself and the informant as against the different male and
female voices he heard emanating from both rooms of
appellant's house. Additionally, Pfc. Reyes instructed Pat.
Ugaddan that after the consummation of the sale he should
report thereon and afterwards they would all go to where the
transaction took place. 23chanrobles virtual law library

We find the explanation of Pat. Ugaddan acceptable if not

satisfactory. In buy-bust operations where the illegal sale can
be witnessed by the other members of the team from strategic
positions, usually the poseur-buyer gives a pre-arranged signal
to arrest the seller. In these cases, considering that the
operation took place inside the house of appellant,
understandably, Pat. Ugaddan and his informant had to get out
of the house and inform their backup that the sale had been
consummated. Furthermore, a weighty consideration is the fact
that, as previously stated, Pat. Ugaddan immediately gave
the shabu to Pfc. Reyes who was only a block away and after
the latter had determined that it was shabu, which only took a
few minutes, 24 they all immediately proceeded to the house of
appellant and arrested him. It was a continuing buy-bust
operation which, as the phrase connotes, commenced with
buying shabuand culminated in his arrest. Since his arrest was
lawful, it follows that the incidental search was also
valid. 25chanrobles virtual law library

The case of People v. Catan 26 involves factual circumstances

similar to those attending the case at bench. Two (2) members
of the buy-bust team, acting as poseur-buyer, bought marijuana
from the accused inside his house while the other members
positioned themselves outside. After receiving the marijuana,
the poseur-buyers immediately went out of the house and gave
a pre-arranged signal to their waiting companions. The other
team members them rushed inside the house and arrested the
accused. Immediately after, the team conducted a search of the
premises which yielded several kilos of marijuana. In this
appeal, the accused asserted that he was illegally arrested and
that the search of his premises was likewise illegal. But we
brushed aside these assertions with this ratiocination -

. . . . Appellant was arrested in flagrante delicto in the act of

selling and delivering marijuana to the poseur-buyers. His case
therefore falls under the category of a valid warrantless arrest
(Sec. 5, Rule 113, 1985 Rules on Criminal Procedure). The
subsequent search of his house which immediately followed
yielding other incriminating evidence, and which became the
basis of his conviction for possession of a prohibited drug, was
a search contemporaneously made and as an incident to a
valid warrantless arrest in the immediate vicinity where the
arrest was made (Nolasco v. Paño, G.R. No. 69803, 30
January 1987, 147 SCRA 509). That is a recognized exception
to the general rule that any search and seizure must be
supported by a valid warrant (Manipon v. Sandiganbayan, G.R.
No. 58889, 31 July 1986, 143 SCRA 267). The inclusion of the
seized items, therefore, as evidence for the prosecution, was in
conformity with the provision on lawful searches (People v.
Castiller, G.R. No. 87783, 6 August 1990, 188 SCRA
376). 27chanrobles virtual law library

It will serve no purpose to dwell on the argument of accused-

appellant regarding the inadmissibility of the receipt of property
seized since the other evidence on record is more than
adequate to sustain his conviction.28chanrobles virtual law
library

In cases involving persons accused of violating R.A. 6425, the

defense, almost always, is denial. So it is in the present case.
Yet, the denial of appellant cannot prevail over the detailed and
unshaken testimonies of the apprehending
officers. 29chanrobles virtual law library

We conclude that the buy-bust operation was not tainted with

infirmity which could absolve accused-appellant from criminal
liability. Hence, we affirm his conviction. But his appeal is not
altogether futile because he will, to a certain degree, benefit
from it. In view of the amendatory provisions of Sec. 17 of R.A.
7659, which covers violations of Secs. 15 and 16 of R.A. 6425,
we have to modify the penalties imposed on him insofar as the
amendments favor him. Thus -

Sec. 17. Section 20, Article IV of Republic Act No. 6425, as

amended, known as The Dangerous Drugs Act of 1972, is
hereby amended to read as follows: "Sec. 20. - Application of
Penalties, Confiscation and Forfeiture of the Proceeds or
Instrument of the Crime. - The penalties for offenses under
Sections 3, 4, 7, 8 and 9 of Article II and Sections 14, 14-A, 15
and 16 of Article III of this Act shall be applied if the dangerous
drugs involved is in any of the following quantities . . . . 3.200
grams or more of shabu or methylamphetamine hydrochloride .
. . . Otherwise, if the quantity involved is less than the foregoing
quantities, the penalty shall range from prision
correccional to reclusion perpetua depending upon the quantity
....

Taking into account the total weight of shabu involved in these

cases, which is only 5.2096 grams, the applicable penalty is
that provided in the second paragraph of Sec. 17. Applying by
analogy the ruling in the leading case of People v. Simon, 30 we
divide the quantity of shabu below 200 grams of 199 grams into
three (3) as basis for determining the proper imposable penalty,
i.e., either prision correccional, prision mayoror reclusion
temporal. The case of People v. Navarro 31 spearheaded such
apportionment as follows:

Weight of shabu Imposable Penalty

from 134 to 199 grams reclusion temporal

from 66 to 133 grams prision mayor
below 66 grams prision correccional

Thus, applying the Indeterminate Sentence Law, and there

being neither mitigating nor aggravating circumstances, the
maximum penalty to be imposed on the accused shall be taken
from the medium period of prision correccional, while the
minimum shall be taken from the penalty next lower in degree,
which is arresto mayor, in any of its periods. Consequently, the
Court considers fair and just imposing upon the accused a
prison term of four (4) months and twenty (20) days of arresto
mayor maximum as minimum, to four (4) years and two months
ofprision correccional medium as maximum in each of the two
(2) cases against the accused. 32chanrobles virtual law library

WHEREFORE, the judgment of conviction in Crim. Case No.

1118 (G.R. No. 106286) and Crim. Case No. 1119 (G.R. No.
106287) is AFFIRMED, subject to the modification that
accused-appellant ROMEO CUACHON Y SOLER is sentenced
in each case to an indeterminate prison term of four (4) months
and twenty (20) days of arresto mayor maximum as minimum,
to four (4) years and two (2) months of prision
correccionalmedium as maximum, to be served successively by
accused-appellant, with costs against
him.chanroblesvirtualawlibrarychanrobles virtual law library

SO ORDERED.

Padilla, Davide, Jr., Quiason and Kapunan, JJ., concur.

Endnotes:

1 Records, p. 1.chanrobles virtual law library

2 Id., p. 3

3 Rollo, pp. 91-92.chanrobles virtual law library

4 Two (2) foils of suspected dried marijuana leaves; Records, p.

290.chanrobles virtual law library

5 Two (2) tin foils of suspected shabu placed in a clear plastic

box; ibid.chanrobles virtual law library

6 Records, p. 295.chanrobles virtual law library

7 Id., p. 297.chanrobles virtual law library

8 TSN, 4 January 1990, pp. 7-8.chanrobles virtual law library

9 TSN, 26 February 1990, p. 52.chanrobles virtual law library

10 Rollo, pp. 87-88.chanrobles virtual law library

11 TSN, 4 January 1990, p. 9; TSN, 26 February 1990, p.

53.chanrobles virtual law library

12 People v. Collantes, G.R. No. 97146, 8 May 1992, 208

SCRA 853.chanrobles virtual law library

13 People v. Simbulan, G.R. No. 100754, 13 October 1992,

214 SCRA 537.chanrobles virtual law library

14 Rollo, pp. 90-91.chanrobles virtual law library

15 People v. William, G.R. No. 93712, 15 June 1992, 209

SCRA 808.chanrobles virtual law library
16 People v. Abelita, G.R. No. 96318, 26 June 1992, 210
SCRA 497.chanrobles virtual law library

17 TSN, 4 January 1990, p. 5.chanrobles virtual law library

18 Id., p. 6.chanrobles virtual law library

19 Id., p. 9.chanrobles virtual law library

20 People v. Pascual, G.R. No. 88282, 6 May 1992, 208 SCRA

393.chanrobles virtual law library

21 People v. Hoble, G.R. No. 96091, 22 July 1992, 211 SCRA

675.chanrobles virtual law library

22 People v. Fernandez, G.R. No. 86495, 13 May 1992, 209

SCRA 1.chanrobles virtual law library

23 TSN, 26 February 1990, pp. 55-56.chanrobles virtual law

library

24 TSN, 4 January 1989, p. 5.chanrobles virtual law library

25 People v. Blas, G.R. No. 97930, 27 May 1992, 209 SCRA

339.chanrobles virtual law library

26 G.R. No. 92928, 21 January 1992, 205 SCRA

235.chanrobles virtual law library

27 Id., p. 242.chanrobles virtual law library

28 People v. Viente, G.R. No. 103299, 17 August 1993, 225

SCRA 361.chanrobles virtual law library

29 People v. Mauyao, G.R. No. 84525, 6 April 1992, 207 SCRA

732.chanrobles virtual law library

30 G.R. No. 93028, 29 July 1994.chanrobles virtual law library

31 G.R. No. 103394, 2 September 1994.chanrobles virtual law

library

32 People v. Simon, Note 30, exhaustively discusses the

application of penalties with respect to the peculiar provision of
the second par. of Sec. 20, Art. IV, of R.A. 6425, as amended
by Sec. 17 of R.A. 7659.